Ashish Notes 4
Ashish Notes 4
In Jeejeebhoy v Asst. Collector, Thana (AIR 1965 SC 1096), the Chief Justice
reconstituted the bench when it was found that one of the members of the bench was a
member of co-operative society for which the land in dispute had been acquired.
2. Personal bias - The judge may be a friend of the party, or is related to him, or have
some business or professional relationship with him, or may even have personal
animosity or hostility against him. In Mineral Development Ltd v State of Bihar
(AIR 1960 SC 468), the Revenue Minister had cancelled the petitioner's licence for
the lease of certain land. It was found that there was political rivalry between
petitioner and the minister.
In A.K. Kraipak v Union of India (AIR 1970 SC 150) the acting Chief Conservator
of Forests was a member of the selection board and was also a candidate for the
selection to the All India Cadre of Forest Service. He did not take part in the
deliberations of board when his name was considered and approved, but he did
participated when the names of his rivals were considered for selection. And he did
participate in the deliberations of the board while preparing list of selected candidates
in order of preference. The Supreme Court held that there was a real likelihood of bias
for the mere presence of candidate on the selection board may adversely influence the
judgement of other members. The actual proof of bias is not necessary.
3. Bias as to subject-matter- Those cases fall within this category where the deciding
officer is directly, or otherwise, involved in the subject-matter of the case. Here again
mere involvement would not vitiate administrative action unless there is a real
likelihood of bias i.e. unless the adjudication has intimately identified himself with the
issues.
(a) Partiality or connection with issues - To disqualify there has to be some close
and direct connection between the adjudicating authority and the issue in controversy.
In R v Deal Justices ex parte Curling (1881) 45 LT 439 the magistrate was not
declared disqualified to try a case of cruelty to an animal on the ground that he was a
member of Royal Society for the Prevention of Cruelty to Animals as this did not
prove a real likelihood of bias.) (Similarly in Murlidhar v Kadam Singh (AIR 1954
MB 111), the court refused to quash decision of Election Tribunal on ground that wife
of chairman was a member of Congress Party whose candidate the petitioner defeated.
In Gullapalli Nageswara Rao v A.P.S.R.T.C. (AIR 1959 SC 308), the court quashed
the decision of A.P. govt. nationalizing road transport, among other grounds, on the
ground of departmental bias because Secretary of Transport who had initiated scheme
(and thus interested in subject-matter) also heard the objections. Realising the
inevitability of departmental bias in administrative process, the Supreme Court,
however, quickly added a caveat to its approach
4. Judicial Obstinacy: The supreme court has discovered a new category of bias arising
from thoroughly unreasonable obstinacy. Obstinacy implies unreasonable and
unwavering persistence, and the deciding officer would not take no for an answer.
This new category of bias was discovered in a situation where a judge of the Calcutta
high court upheld his own judgement while sitting in appeal against his own
judgement. of course, a direct violation of the rule that no judge can sit in appeal
against his own judgement is not possible, therefore, this rule can only be violated
indirectly. In this case, in a fresh writ petition, the judge validated his own order in an
earlier writ petition which had been overruled by the division bench. What applies to
judicial process can be applied to administrative process as well.
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 (AIR 1973 SC 389), 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. In the same manner, in
Maharashtra State Financial Corpn. v Suvarna Board Mill (1994) 5 SCC 566, 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.
2. 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 under exceptional circumstances.
In Travancore Rayons Ltd. v. Union of India (AIR 1971 SC 862), the court
observed that the party affected should've an opportunity of adequately meeting the
case against him and of presenting his case, and, that may be achieved through written
memoranda and explanation and not necessarily through an oral hearing
3. 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:
(a) 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. In State of J & K v Bakshi Gulam Mohammad (AIR 1967 SC
122), the court denied cross-examination of witness on the ground that the evidence of
witness was in the form of affidavits and the copies had been made available to party.
In M.H. Hoskot v State of Maharashtra (AIR 1978 SC 1548), the court held that
the right to personal liberty implies provisions by the State of free legal service to
poor or indigent prisoners.
The court held that, the doctrine of natural justice cannot be imprisoned within the
strait-jacket of a rigid formula and its application depends on several factors. In other
words, rules of natural justice are flexible. The requirements of natural justice must
depend on the circumstances of the case, the nature of the inquiry, the subject matter
that is being dealt with, and so forth.
5. Report of the enquiry to be shown to the other party (Failure to supply enquiry
report): In administrative matters, it happens (especially in disciplinary matters) that
the inquiry is entrusted to someone else and on the report of the enquiry the action is
taken by the competent authority. Under these circumstances, the question arises
whether - the copy of the report be supplied to the charged employee before final
decision is taken by the competent authority and, whether failure to do so violates the
principles of natural justice and the provisions of 'reasonable opportunity of Article
311(2) of the Constitution of India?
In Union of India v H.C. Goel (AIR 1964 SC 364), the Disciplinary Authority held
the delinquent employee guilty while the report of the Inquiry Officer found him not
guilty. The Supreme Court held the action of Disciplinary Authority illegal. The
decision is a pointer to the fact that if Disciplinary Authority acts contrary to the
report of inquiry officer, the report must be supplied to the delinquent to give him an
opportunity to address the mind of the Authority who alone can find him guilty.
REASONED DECISION OR SPEAKING ORDERS:
The decision given must be reasoned one and therefore, the decision must be evidenced by a
speaking order which enumerates the reasons for coming to a particular conclusion. The
Supreme Court has unequivocally accepted that speaking order is the third important basic
principle of natural justice. Thus, a party ought to know the result of the inquiry and the
reasons for the decision.
However, an administrative agency is not bound to give reasons for its decisions unless the
statute requires so. In cases where the statute does not provide for reasoned decisions, the
courts in India are still busy in the process of developing workable parameters between the
claims of individual justice and administrative flexibility. Reasoned decision enables the
aggrieved party to question whether the authority or tribunal had properly applied the law to
the facts even though it wouldn't have enabled him to question whether the tribunal had
drawn proper inference from the evidence. The 'speaking orders' facilitate judicial review.
In India till very recently, it was not accepted that the requirement of passing speaking orders
is one of the principles of natural justice. However, now it is well established principle of
natural justice.
In Sunil Batra v Delhi Admn. (AIR 1978 SC 1675), the court read in Sec. 56 of Prisons Act
an implied duty on the jail superintendent to give reasons for putting fetters on a prisoner.
6. Exclusion in cases of legislative action: Legislative action is not subject to the rules
of natural justice because these rules lay down a policy without reference to a
particular individual. In Charan Lal Sahu v Union of India (1990) 1 SCC 613, the
court upheld the constitutionality of Bhopal Gas Leak Disaster (Processing of Claims)
Act, 1985 on the ground that for legislation by parliament no principle of natural
justice is attracted.