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Published : July 13, 2015 | Author : Lydia Kerketta
Category : Constitutional Law | Total Views : 10929 | Rating :

  
Lydia Kerketta
Ms. Lydia has completed B.Sc.(H)Chem, B.Ed., LL.B.(Law Centre 1) and LL.M. (Faculty of Law) from Delhi University. She has done extensive research on Armed Forces (Special Powers) Act, 1958 during her course work in LL.M. She is also NET-JRF qualified in Law. Currently, she is pursuing M.Phil./ Ph.D in International Legal Studies from Jawaharlal Nehru University.
 

Audi Alterem Partem: Right To Fair Hearing: Right to fair hearing

Rules of Natural Justice

Rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. In order to protect himself against the excesses organised power, man has always appealed to someone beyond his own creation. Such someone can only be God and His law, divine law or natural law, to which all temporal laws and actions must conform. This is the origin of the concept of natural justice. Natural justice implies fairness, reasonableness, equity and equality. Natural justice is the concept of common law and it is the common-law world counterpart of the American ‘procedural due process’. Natural justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual.

In India, the principles of natural justice are firmly grounded in Article 14 and 21 of the Constitution. Principles of natural justice are attracted whenever a person suffers a civil consequence or a prejudice is caused to him in any administrative action. Mainly there are two principles:

1. Nemo in propria causa judex, esse debet – no one should be made a judge in his own cause, or the rule against bias.
2. Audi alteram partem – no one should be condemned unheard.

This term paper deals with the second principle of natural justice. Right of fair hearing i.e. audi alteram partem meaning one should not be condemned unheard.

Audi Alteram Partem: the rule of fair hearing
The principle of audi alteram partem is the basic concept of the principle of natural justice. The omnipotency inherent in the doctrine is that no one should be condemned unheard. In the field of administrative action, this principle has been applied to ensure fair play and justice to affected persons. Its application depends upon the factual matrix to improve administrative efficiency, expediency and to mete out justice. The procedure adopted must be just and fair. The expression audi alteram partem simply implies that a person must be given an opportunity to defend himself. This principle is a sine qua non of every civilized society. Corollary deduced from this rule is qui aliquid statuerit, parte inaudita altera aeuquum licet dixerit, haud aequum facerit i.e. he who shall decide anything without the other side having been heard although he may have said what is right will not have done what is right. The rule of fair hearing is a code of procedure, and hence covers every stage through which an administrative adjudication passes, starting from notice to final determination.

1. Right To Notice

The term ‘notice’ originates from the Latin word ‘notitia’ which means ‘being known’. Notice is the starting of any hearing. Unless a person knows the formulation of subject and issues involved in the case, he cannot defend himself. A notice must be adequate and contain:

1) Time, place and nature of hearing,
2) Legal authority under which hearing is to be held,
3) Statement of specific charges (or grounds) and proposed action (or grounds) which the person has to meet.

The test of adequacy of notice will be whether it gives sufficient information and material so as to enable the person concerned to put up an effective defence.

However, the requirement of notice will not be insisted upon as a mere technical formality, when the concerned party clearly knows the case against him, and is not thereby prejudiced in any manner in putting up an effective defence. Therefore in Keshav Mills Co. V Union of India, the court did not quash the order of the government taking over the mill for a period of 5 years on the technical ground that the appellants were not issued notice before this action was taken, because, at an earlier stage, a full-scale hearing had already been given and there was nothing more which the appellant wanted to know. Similarly, in Maharashtra State Financial Corpn. V Suvarna Board Mill, the court held that a notice calling upon the party to repay dues within 15 days failing which factory would be taken over is sufficient for taking over the factory and no fresh notice is required for pulling down an unauthorised structure when notice for removing such structure has already been given.

Where a statute expressly provides that a notice must be given, failure to give notice makes the act void. Article 22 of Constitution requires that detenu must be furnished with the grounds of detention and if the grounds are vague, the detention order may be quashed by the court. The grounds given in notice on which the action is proposed to be taken must be clear, specific and unambiguous. A notice is vague if it merely mentions the charges without mentioning the action proposed to be taken.

Consequences of non-issue of notice:
· Non-issue of notice or mistake in the issue of notice of defective service of notice does not affect the jurisdiction of the authority, if otherwise reasonable opportunity of being heard has been given.

· Issue of notice as prescribed by law constitutes a part of reasonable opportunity of being heard.

· If prejudice has been caused by non-issue or invalid service of notice the proceedings would be vitiated. But irregular service of notice would not render the proceedings invalid, more so if the person by his conduct has rendered service impracticable or impossible.

· In case of non-issue of notice, or defective service, which violates the principles of natural justice; an administrative authority may decide the case de novo with proper notice.

· Show-cause notice if contains unspecified, vague or unintelligent allegations would imply a denial of proper opportunity if being heard.

2. Right To Know The Evidence Against Him

Every person before an administrative authority exercising adjudicatory powers has the right to know the evidence to be used against him. This principle was firmly established in Dhakeshwari Cotton Mills Ltd V. Cit. In this case the appellate income tax tribunal did not disclose the information supplied to it by the department. The SC held that the assessee was not given fair hearing. However, the supply of adverse material, unless the law otherwise provides, in original form is not necessary. It is sufficient if the summary of the contents of the material is supplied provides it is not misleading. A person may be allowed to inspect a file and take notes. Whatever mode is used, the fundamental remains the same that nothing should be used against the person which has not been brought to his notice.

3. Right To Present Case And Evidence

This can be done through writing or orally. The courts are unanimous on the point that oral/personal hearing is not an integral part of fair hearing unless circumstances so exceptional that without oral hearing a person cannot put up an effective defence. Therefore, where complex legal and technical questions are involved or where the stakes are very high, oral hearing shall become a part of fair hearing. Thus, in the absence of a statutory requirement for oral hearing courts will decide the matter taking into consideration the facts and circumstances of every case. In Union of India V. J. P. Mitter the court refused to quash the order of the President of India in a dispute relating to the age of high Court judge on the ground that the President did not grant oral hearing even on request. The court was of the view that when the person has been given an opportunity to submit his case in writing, there is no violation of the principles of natural justice if oral hearing is not granted.

The administrative authority must further provide full opportunity to present evidence – testimonial or documentary. In Dwarkeshwari Cotton Mills Ltd. V. Cit, the SC quashed the decision of the administrative authority on the ground that not allowing the assessee to produce material evidence violates the rule of fair hearing.

4. The Right To Rebut Adverse Evidence

This right presupposes that the person has been informed about the evidence against him. The opportunity to rebut evidence necessarily involves consideration of two factors-

Cross-examination- It is the most powerful weapon to elicit and establish truth. However, the courts do not insist on cross-examination in administrative adjudication unless the circumstances are such that in the absence of it the person cannot put an effective defence. The SC in Town Area Committee V. Jagdish Prasad, the department submitted the charge-sheet, got an explanation and thereafter straightaway passed the dismissal order. The court quashed the order holding that the rule of fair hearing includes an opportunity to cross-examine the witnesses and to lead evidences. However, in externment proceedings and proceedings before customs authorities to determine whether goods are smuggled or not the right of cross-examination was held not to be a part of natural justice.

On the grounds of practicability also opportunity of cross-examination may be disallowed. In Hira Nath Mishra V. Principal, Rajendra Medical College, the SC rejected the contention of the appellants that they were not allowed to cross-examine the girl students on the ground that if it was allowed no girl would come forward to give evidence, and further that it would not be possible for the college authorities to protect girl students outside the college premises.

Legal Representation- Normally representation through a lawyer in any administrative proceeding is not considered an indispensable part of the rule of natural justice as oral hearing is not included in the minima of fair hearing. This denial of legal representation is justified on the ground that lawyers tend to complicate matters, prolong the proceedings and destroy the essential informality of the proceedings. It is further justified on the ground that representation through a lawyer of choice would give an edge to the rich over the poor who cannot afford a good lawyer.

It is relevant to note at this stage that the SC in M.H. Hoskot V. State of Maharashtra, while importing the concept of ‘fair procedure’ in Article 21 of the Constitution held that the right to personal liberty implies provision by the State of free legal service to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service.

In Khatri V. State of Bihar, the SC further ruled that the State is constitutionally bound to provide legal aid to the poor or indigent accused not only at the stage of trial but at the time of remand also. Such right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. The SC emphasised that it is the duty of the presiding officer to inform the accused of such right.

In the same manner in Nalini Satpathy V. P.L.Dani, the court held that the accused must be allowed legal representation during custodial interrogation and the police must wait for a reasonable time for the arrival of a lawyer. However, the Court which took the right step, did not take a long stride in holding that the State must provide a lawyer if the accused is indigent. The observation of the Court could well be inducted in the administration. In the area of criminal justice the CPC now provides for legal aid to the accused.

5. No Evidence Should be Taken at The Back of the Other Party

The ex parte evidence taken in the absence of the other party violates the principle of fair hearing was discussed by the court in Errington V. Minister of Health. The facts were that in 1933 Jarrow Corporation passed a clearance order for the demolition of certain buildings found unfit for human habitation and submitted the same for the confirmation of the minister of health. An enquiry was held and the owners of the building were given a hearing. Thereafter some officials of the ministry again visited the place and collected evidence but the owners were not informed about the visit. The clearance order was confirmed by the minister after taking into account the facts thus collected. On challenge, the clearance order was quashed by the court and one of the grounds for so deciding was that the ex parte statements taken in the absence of the other party, without affording an opportunity to rebut, is against the recognised principles of natural justice.

The decision does not imply that administrative agencies cannot obtain information in the manner they consider best. The main thrust of Errington case is that whatever information is obtained by the administrative authority must be disclosed to the other party and the opportunity to rebut it must be provided.

The SC reiterated this position in Hira Nath Mishra V. Principle, Rajendra Medical College. In this case 36 girls of a medical college filed a report with the Principle regarding misbehaviour of the boys in the girl’s hostel. The enquiry committee appointed by the Principle recorded the statements of the girls, but in the absence of the appellants. The appellants were also identified by the girls through the photographs. The committee found the appellants guilty and consequently an expulsion order was served on them. The order of expulsion was challenged before the SC and one of the grounds of challenge was that the evidence was taken behind their backs. The court rejected the contention holding that the girls would not have ventured to make the statements in the presence of the appellants except at a great risk of retaliation and harassment. In this case, whatever evidence was collected behind their backs of the appellants was brought to their notice and they were provided with an opportunity to rebut the evidence.

6. Institutional Decision or One Who Decides Must Hear

The expression ‘one who decides must hear’ which is popular in common law jurisdiction is known by the term ‘institutional or anonymous decisions’ in American law. Unlike law courts, the decision in many administrative proceedings is not the decision of one man from start to finish. Often one person hears and another decides. The divided responsibility may work contrary to the concept of fair hearing.

In Gullupalli Nageshwara Rao V. Apsrtc  is a case where an administrative action was challenged on the ground that the one who decides did not hear. In this case, the petitioners challenged the order of the government confirming the scheme of road nationalisation. The Secretary of the Transport Department gave the hearing but the final decision came from the Chief Minister. The SC held that this divided responsibility was against the concept of fair hearing because if one who decides does not hear the party, he gets no opportunity of clearing doubts in his mind by reasoned arguments.

7. Rule Against Dictation

Any administrative authority invested with the power of decision making must exercise this power to exercise of its own judgment. The decision must be actually his, who decides. Therefore, if a decision is taken at the direction of any outside agency, there is a violation of fair hearing. In Mahadayal V. Cto, the SC quashed the decision of the CTO imposing tax on the petitioner on directions from his superior officer even when he himself was of the opinion that the petitioner was liable to tax.

8. Financial Capacity To Attend The Enquiry

In Mumtaz Hussain Ansari V. State of U.P, the appellant, a District Superintendent of Police at Pilibhit, had been charged on various counts including wilful absence from duty. Before the Tribunal he wanted eight witnesses be examined in his defence. The Tribunal asked him to deposit Rs. 900 for the allowance to be paid to the witnesses. The appellant could not deposit the amount and hence witnesses could not be examined. The SC ruled that if the appellant was under suspension for a long time and hence could not deposit the amount due to financial incapacity, the failure not to summon defence witnesses at the government’s expense was a violation of the principles of natural justice unless it was decided by the authority that the evidence of such witnesses was not material.

9. Decision Post-Haste

Fundamentals of ‘fair hearing’ require that the administrative authority must not haste in making decisions. In S.P. Kapoor V. State of H.P, the SC quashed the action of the government taken in haste. In this case the Departmental Promotional Committee was constituted the very next day of the finalisation of the seniority list of the candidates who were continuing on ad hoc promotion for about six years. At the time of the constitution of the committee, one of the members was on the leave for a short time and therefore, the person officiating was included in his place as a committee member. Selections were made and the orders of appointment were also issued on the very date of the constitution of the committee. The SC held that the way whole thing was completed in haste gives rise to the suspicion that some high-up was interested in pushing through the matter hastily and hence the matter requires to be considered afresh.

10. Should The Third Party To Dispute Be Heard

Essence of any fair adjudication is that the parties to the dispute must be heard. However, should the third party to the dispute is also entitled to hearing particularly if the decision is likely to adversely affect his interest? The SC in Antonio S.C. Pariera V. Rocardina Naronha, where the question was whether a ‘third person’ to the dispute should be heard, answered the question in affirmative, court observed that even if law does not provide for it, a third person must be heard in the same dispute if he is likely to suffer substantial injury by the decision.

11. Reasoned Decision

In India, in the absence of any particular statutory requirement, there is no general requirement for administrative agencies to give reasons for their decisions. However, if the statute under which the agency is functioning requires reasoned decisions, courts consider it mandatory for the administrative agency to give reasons which should not be merely ‘rubber-stamp’ reasons but a brief, clear statement providing the link between the material on which certain conclusions are based and the actual conclusions. In M.J.Sivani V. State of Karnataka  the Court reiterated that when the rules direct recording of reasons it is a sine qua non and a condition precedent for a valid order. Appropriate brief reasons, though not like a judgment, are necessary for a valid order. Normally they must be communicated to the affected party so that he may have an opportunity to have them tested in the appropriate forum. An administrative order itself may contain reasons or the file may disclose reasons to arrive at the decision showing application of mind to the facts in issue.

12. Enquiry Report to be Furnished or Not

In no administrative proceeding it is necessary that everything must be done by the same officer alone. He is permitted to take help from his subordinates. If it is not so, the administration would come to a grinding halt, because today the administration is ubiquitous and impinges freely and deeply on every aspect of an individual’s life.

In many cases, especially in disciplinary matters, it happens that the inquiry is entrusted to someone else and on the report being submitted; action is taken by the competent authority. Under these circumstances a very obvious question which arises is ‘whether the copy of the repost of the enquiry officer is supplied to the charged employee before a final decision is taken by the competent authority’?

Looking at the importance of the above question Thakker, J., in Union of India V. E. Bashyan did not venture to pronounce a final judgment on it but rather thought it proper to refer this question to a larger Bench. This was a special leave petition by the Union of India from the judgment and order dated November 12, 1987 of the Central Administrative Tribunal, New Bombay, wherein this question had been answered in the affirmative by holding that the failure to supply the inquiry report to the delinquent before the disciplinary authority takes a final decision would constitute a violation of Article 311(2) of the Constitution and violation of the principles of natural justice.

This question is important from the constitutional and administrative laws points of view. One of the cardinal principles of administrative law is that any action which ahs civil consequences for any person cannot be taken without complying with the principles of natural justice.

The next important question is ‘whether failure to supply the copy of the report of the inquiry to the delinquent employee before the final decision is taken by the competent authority would violate the principles of natural justice?’ similarly, ‘whether failure to supply a copy of the report of the inquiry to the delinquent would violate the provisions of Article 311(2) of the Constitution of India?’

Article 311 (2) provides that no government employee can be dismissed or removed or reduced in rank without giving him a reasonable opportunity of being heard in respect of the charges framed against him. Therefore, it has always been a perplexing question, ‘whether failure to supply the report of the inquiry officer to the charged government employee before a final decision is taken would amount to failure to provide a “reasonable opportunity” as required under Article 311(2)’. Another constitutional question can be ‘whether any final action which is taken by the authority on the basis of the report of the inquiry without first supplying a copy of it to the delinquent would be arbitrary and hence violative of Article 14 of the constitution which enshrines the great harmonizing and rationalizing principles’.

For the first time on November 6, 1987 that a Full Bench of the Central Administrative Tribunal, speaking through K. Madhava Reddy,J., Chairman, held that failure to supply a copy of the inquiry report to the delinquent before recording a finding against him is obligatory or failure to do so vitiate the inquiry.

In 1964, a similar question had come before Supreme Court in Union of India V. H.C.Goel. but in a different context. In this inquiry officer had found the charged employee not guilty of the charge of making an offer of a bribe to a superior officer. The Union Public Service Commission had also endorsed the conclusions of the inquiry officer. Nevertheless the Disciplinary Authority, rejecting the report of the inquiry officer, found the delinquent officer guilty and punished him. This action was challenged on the ground that the decision of the Disciplinary Authority was not based on evidence and hence void. The Highest Bench while quashing the administrative action held that the inquiry officer as a delegate of the Disciplinary Authority investigates the matter collects evidence and makes his recommendation on the basis thereon. Therefore, when the disciplinary authority holds the delinquent guilty, contrary to the material and the recommendations of the inquiry officer in his report, then the Authority certainly is acting on ‘no evidence’ before it and hence its decision holding the delinquent guilty is not legal.

In Suresh Koshy V. University of Kerala, the Supreme Court raised another question: whether the denial to furnish a copy of the report when demanded would amount to violation of the principles of natural justice? In this case the Vice-chancellor had instituted an inquiry into the charge of use of unfair means by a student and on the basis of the report, the University expelled him from the University. This action was challenged on the ground that a copy of the report was not supplied. The court held that since a copy of the report was not specifically asked for by the student, there was no breach of the principles of natural justice.

The Supreme Court in Keshav Mills Co. Ltd. V. Union of India the appellant company after doing business for 30 years suddenly had to be closed down because of fall in production. As a result, 1200 persons became unemployed. The government in India appointed a commission to inquire into the affairs of the company under section 15 of the Industries (Development and Regulation) Act, 1951. On the basis of the report of the inquiry commission, the government passed an order under Section 18-A of the Act, authorising the Gujarat State Textile Corporation to take over the Mill for a period of 5years. This decision was challenged before the Supreme Court and one of the grounds of challenge was that the report of the inquiry commission was not furnished. The Court held that it was not possible to lay down any general principle on the question as to whether the report of an investigating body or an inspector appointed by an administrative authority should be made available to the person concerned before the authority reaches a decision upon that report. The answer to this question must always depend on the facts and circumstances of each case. It is not at all unlikely that there may be certain cases where, unless the report is given to the party, the party concerned cannot make any effective representation about the action taken on the basis of that report. Whether the report should be furnish or not must, therefore, depend on the circumstances of every individual case. Therefore, if the non-disclosure of a report causes any prejudice in any manner to a party, it must be disclosed, otherwise non-disclosure would amount to a violation of the principles of natural justice.

In Divisional Manager, Plantation Division V. Munnu Barrack, the Supreme Court once again emphasised on ‘prejudice doctrine’ which makes it obligatory on the part of the workman to show that he had been prejudiced by reason of non-supply of enquiry report. Therefore, principles of natural justice must be seen in circumstantial flexibility. An administrative action can be quashed only if non-observance of the principles of natural justice has caused serious prejudice to the complainant.

Those who hold the view that it must be obligatory in all cases for the disciplinary authority to supply a copy of the inquiry report to the delinquent before a final decision is reached argue that there may be errors and omissions, misstatements and lack of evidence in the report of the inquiry officer which will affect the mind of the disciplinary authority. Therefore, if no opportunity is given to the delinquent to make a representation on the basis of the report it would be clear violation of the principles of natural justice.

The report of the inquiry officer in relation to a decision thereupon by the disciplinary authority may take any of the following broad shapes:
1. The inquiry report may indict the delinquent and the disciplinary authority may exonerate him.
2. The inquiry report may exonerate the delinquent and the disciplinary authority may indict him.
3. The inquiry report may indict the delinquent and the disciplinary author may also indict him.
4. The inquiry report may exonerate the delinquent and the disciplinary authority may also exonerate him.

In the first and fourth situations supply of the inquiry report would be unnecessary. In the second case if the report of the inquiry is not supplied to the delinquent along with the comments of the disciplinary authority it would violate the principles of fairness because in its absence the decision of the disciplinary authority would be based on ‘no evidence’. Similarly, in the third situation it will be in the interest of fairness if a copy of the report is supplied to the delinquent before a final decision is taken in his case. This will all the more be necessary in situations where inquiry has been held for the imposition of any major penalty.

In Kailash Chander Asthana V. State of U.P, a Bench of three judges of the Supreme Court held that after the 42 Constitutional Amendment of Article 311 a copy of the inquiry report need not be shown to the delinquent government servant but in Union of India V. Mohd. Ramzan Khan, again a Bench of three judges of the Supreme Court held the opposite by holding that non-furnishing of the inquiry report would amount to denial of the principles of natural justice.

The Court held that the delinquent employee has a right to a copy of the inquiry report before the disciplinary authority takes a decision on the question of his guilt. The Court further emphasised that this rule extends to all establishments – government, non-government, private or public.

Concept of Post Decisional Hearing
The idea of post-decisional hearing has been developed to maintain a balance between administrative efficiency and fairness to the individual. The harmonising tool was developed by the SC in Maneka Gandhi V. Union of India. In this case the passport dated June 1, 1976 of the petitioner, a journalist, was impounded ‘in the public interest’ by an order dated July 2, 1977 and the government having declined to furnish her the reasons for its decision she filed a petition before the SC under Article 32 challenging the validity of the impounding order. The government also did not give her any pre-decisional notice and hearing. One of the contentions of the government was that the rule of audi alteram partem must be held to be excluded because it may have frustrated the very purpose of impounding the passport. Rejecting the contention the court rightly held that though impounding of the passport was an administrative action yet the rule of fair hearing is attracted by necessary implication and it would not be fair to exclude the application of this cardinal rule on the ground of administrative convenience.

On the contrary the technique of post decisional hearing was developed in order to balance the factors against the clear requirement of law, justice and fairness. The court stressed that a fair opportunity of being heard following immediately the order impounding the passport would satisfy the mandate of natural justice.

The same technique of validating void administrative decision by post-decisional hearing was adopted in Swadeshi Cotton Mills V. Union of India. The court validated the order of the government for taking over the management of the company which had been passed in violation of the audi alteram partem rule and which was found to have been attracted by necessary implication because the government had agreed to give post-decisional hearing.

K.I.Shephard V. Union of India also reflects the thought process of the highest bench on this important issue. In this case the terms of the scheme drawn under section 45 of the banking regulation act, 1949 three erstwhile banks had been amalgamated. Pursuant to the scheme, certain employees of the amalgamated banks were excluded from the employment and their services were not taken over. Some excluded employees filed writs before the High court under Article 226 for relief. The Single Judge granted partial relief by proposing post-decisional hearing. On appeal the Division Bench dismissed the writ petitions. Some of the excluded employees then filed the writ petition directly in the Supreme Court. Allowing the writs the Court held that post-decisional hearing would not do justice in this case especially where the normal rule of fair hearing should apply. The court pointed out that there is no justification to throw a person out of the employment and then give him an opportunity of representation when the requirement is that he should have an opportunity as a condition precedent to action. The Court observed that it is a common experience that once a decision is taken there is a tendency to uphold it and the representation may not yield any fruitful result. Therefore, even in cases of emergent situations pre-decisional hearing is necessary which may not be an elaborate one, especially in cases where the action has grave consequences such as loss of livelihood.

Justifying the idea of post-decisional hearing, Professor de Smith writes: “can the absence of a hearing before a decision is made be adequately compensated for by a hearing ex post facto? A prior hearing may be better than a subsequently hearing but a subsequently hearing is better than no hearing at all; and in some cases courts have held that statutory provision for an administrative appeal or even full judicial review on merits is sufficient to negative the existence of any implied duty to hear before the original decision is made. The approach may be acceptable where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings.”

The Supreme Court in H.L.Trehan V. Union of India observed: “in our opinion, the post-decisional opportunity of hearing does not sub-serve the rules of natural justice. The authority which embarks upon a post-decisional hearing will normally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity.” Thus in every case where the pre-decisional hearing is warranted post-decisional hearing will not validate the action except in every exceptional circumstances

Exceptions To The Rule of Natural Justice

The word exception in the context of natural justice is really a misnomer, because in these exclusionary cases the rule of audi alteram partem is held inapplicable not by way of an exception to ‘fair play in action’, but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. Such situations where nothing unfair can be inferred by not affording fair hearing must be few and exceptional in every civilized society. Application of the principles of natural justice can be excluded either expressly or by necessary implication, subject to the provisions of Articles 14 and 21 of the constitution.

1) Exclusion Emergency

In such exceptional cases of emergency where prompt action, preventive or remedial, is needed, the requirement of notice and hearing may be obviated. Therefore, if the right to be heard will paralyse the process, law will exclude it. Even in a situation of emergency where precious rights of people are involved, post-decisional hearing has relevance to administrative and judicial gentlemanliness. Otherwise some pre-decisional hearing, no matter in a rudimentary form must be given depending on the fact situation of every case.

However, the administrative determination of a emergency situation calling for the exclusion of rules of natural justice is not final. Courts may review the determination of such a situation. In Swadeshi Cotton Mills V. Union of India the court held that the word “immediate” in section 18-A of the Industries (Development and Regulation) Act cannot stand in the way of the application of the rules of natural justice.

2) Exclusion In Cases Of Confidentiality

In Malak Singh V. State Of Punjab And Haryana the Supreme Court held that the maintenance of surveillance register by the police is a confidential document. Neither the person whose name is entered in the register nor any other member of the public can have access to it. Furthermore, the court observed that the observance of the principles of natural justice in such a situation may defeat the very purpose of surveillance and there is every possibility of the ends of justice being defeated instead of being served.

3) Exclusion In Case Of Purely Administrative Matters

A student of the university was removed from the rolls for unsatisfactory academic performance without being given any pre-decisional hearing. The Supreme Court in Jawahar Lal Nehru University V. B.S. Narwal held that the very nature of academic adjudication appears to negative any right of an opportunity to be heard. Therefore if the competent academic authorities examine and assess the work of a student over a period of time and declare his work unsatisfactory, the rules of natural justice may be excluded. However, this exclusion would not apply in case o disciplinary matters or where the academic body performs non-academic functions.

4) Exclusion Based On Impracticability

In R. Radhakrishnan V. Osmania University, where the entire MBA entrance examination was cancelled by the university because of mass coping, the court held that notice and hearing to all candidates is not possible in such a situation, which had assumed national proportions. Thus the court sanctified the exclusion of the rules of natural justice on the ground of administrative impracticability.

5) Exclusion In Cases Of Interim Preventive Action

If the action of the administrative authority is a suspension order in the nature of a preventive action and not a final order, the application of the principles of natural justice may be excluded. In Abhay Kumar V.K. Srinivasan, the institution passed an order debarring the student from entering the premises of the institution and attending classes till the pendency of a criminal case against him for stabbing a co-student. This order was challenged on the ground of denial of natural justice. The Delhi High Court rejecting the contention held that such an order could be compared with an order of suspension pending enquiry which is preventive in nature in order to maintain campus peace and hence the principles of natural justice shall not apply.

6) Exclusion In Cases of Legislative Action

Legislative action, plenary or subordinate, is not subject to the rules of natural justice because these rules lay down a policy without reference to a particular individual. On the same logic principles of natural justice can also be excluded by a provision of the Constitution also. The Constitution of India excludes the principles of natural justice in Articles 22, 31(A), (B), (C) and 311(2) as a matter of policy. Nevertheless if the legislative exclusion is arbitrary, unreasonable and unfair courts may quash such a provision under Articles 14 and 21 of the Constitution. Union of India V. Cynamide India Ltd. when the Supreme Court that no principles of natural justice had been violated when the government issued a notification fixing the prices of certain drugs. The Court reasoned that since the notification flowed from a legislative act and not an administrative one so the principles of natural justice would not apply.

7) Where No Right Of The Person Is Infringed

Where no right has been conferred on a person by any statute nor any such right arises from common law the principles of natural justice are not applicable. In Andhra Steel Corpn. V. A.P. State Electricity Board  held that a concession can be withdrawn at any time without affording any opportunity of hearing to affected persons except when the law requires otherwise or the authority is bound by promissory estoppels. In this case the Electricity Board had withdrawn the concession in electricity rate without any notice and hearing to the appellant. Therefore, where an order of extension was cancelled before it became operational or the order of stepping up salary was withdrawn before the person was actually paid or the services of the probationer terminated without charge the principles of natural justice are not attracted.

8) Exclusion In Case of Statutory Exception Or Necessity

Disqualification on the ground of bias against a person will not be applicable if he is the only person competent or authorised to decide that matter or take that action. If this exception is not allowed there would be no other means for deciding that matter and the whole administration would come to a grinding halt. But the necessity must be genuine and real.

Charan Lal Sahu V. Union of India (Bhopal Gas disaster case) is a classical example of the application of this exception. In this case the constitutional validity of the Bhopal Gas disaster (Processing of Claims) Act, 1985, which had authorized the Central government to represent all the victims in matters of compensation award, had been challenged on the ground that because the Central government owned 22 per cent share in the Union Carbide Company and as such it was a joint tortfeasor and thus there was a conflict between the interests of the government and the victims. Negativating the contention the court observed that even if the argument was correct the doctrine of necessity would be applicable to the situation because if the government did not represent the whole class of gas victims no other sovereign body could so represent and thus the principles of natural justice were not attracted.

9) Exclusion In Case Of Contractual Arrangement

In State of Gujarat V. M.P. Shah Charitable Trust, the Supreme Court held the principles of natural justice are not attracted in case of termination of an arrangement in any contractual field. Termination of an arrangement/agreement is neither a quasi-judicial nor an administrative act so that the duty to act judicially is not attracted.

10) Exclusion In Case of Government Policy Decision

In Balco Employees Union V. Union of India, the Apex Court was of the view that in taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. In this case employees had challenged the government’s policy decision regarding disinvestment in Public sector undertakings. The Court held that even though workers may have interest in the decision, but unless the policy decision to disinvest is capricious, arbitrary, illegal or uninformed , and is not contrary to law, the decision cannot be challenged on the grounds of violation of the principles of natural justice. Therefore, if in exercise of executive powers the government takes any policy decision, principles of natural justice can be excluded because it will be against public interest to do so.

11) ‘Useless Formality’ Theory

‘Useless formality’ is yet another exception to the application of the principles of natural justice. Where on the admitted or undisputed facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not insist on the observance of the principles of natural justice because it would be futile to order its observance. Therefore, where the result would not be different, and it is demonstrable beyond doubt, order of compliance with the principles of natural justice will not be justified.

Conclusion:
Audi alteram partam is a wide concept than what it seems to be. It is one of the cardinal principles of the rules of natural justice rather it would be unjustified to think about natural justice without taking into account the concept of audi alteram partam. It mean right to fair hearing. This phrase though sounds simple but it embraces in itself the whole story of justice right from sending notice to post decisional hearing.

Though, there are certain exceptions where this principle is not followed. But then these exceptions also have to be justified. There has to be a rational behind skipping this very concept which forms the very basis of the justice.

Then the questions arises where to skip and where not to? There is no straight jacket formula to calculate this. It rather depends on the different facts and circumstances of the case. The presiding judge should balance the gravity of the facts and circumstances of both the parties.

But yes, we can conclude looking at the above cases that audi alteram partam i.e. right to fair hearing is a general concept, and skipping this is an exception.

Endnotes
# AIR 1973 SC 389
# (1994) 5 SCC 566
# AIR 1955 SC 65
# AIR 1971 SC 1093
# AIR 1955 SC 65
# AIR 1978 SC 1407
# AIR 1973 SC 1260
# AIR 1978 SC 1548
# AIR 1981 SC 928
# AIR 1978 SC 1025
# 1935 1 KB 249
# AIR 1973 SC 1260
# AIR 1959 SC 308
# AIR 1958 SC 667
# AIR 1984 SC 1116
# AIR 1981 SC 2181
# (2006) 7 SCC 740
# (1995) 6 SCC 289
# (1988) 2 SCC 196
# AIR 1964 SC 364
# AIR 1969 SC 198
# AIR 1973 SC 389
# (2005) 2 SCC 237
# (1988) 3 SCC 600
# (1991) 1 SCC 588
# AIR 1978 SC 597
# AIR 1981 SC 818
# (1987) 4 SCC 431
# (1989) 1 SCC 764
# AIR 1981 SC 818
# AIR 1981 SC 760
# AIR 1980 SC 1666
# AIR 1974 AP 283
# AIR 1981 Del 381
# (1987) 2 SCC 720
# (1991) 3 SCC 263
# (1990) 1 SCC 613
# (1994) 3 SCC 552
# (2002) 2 SCC 333

 




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