NATURAL JUSTICE

The term ―Principles of Natural Justice (PNJ), derived from the expression “Jus Natural” of the
Roman Law, does not have force of law as they may or may not form part of statute but they are
necessarily to be followed. The adherence to principles of natural justice as recognized by all
civilized States is of supreme importance when a quasi-judicial body embarks on determining
disputes between the parties, or any administrative action involving civil consequences is in
issue. These principles are well settled.

Principles of natural justice are those rules which have been laid down by the Courts as being the
minimum protection of the rights of the individual against the arbitrary procedure that may be
adopted by a judicial, quasi-judicial and administrative authority while making an order affecting
those rights. These rules are intended to prevent such authority from doing injustice.

Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be
ranked as fundamental. The purpose of following the principles of natural justice is the
prevention of miscarriage of justice.

In the case of A.K Kraipak vs. Union of India (AIR 1970 S.C.150) & Maneka Gandhi (AIR 1978
S.C.597) The rules of natural justice do not supplant the law of the land but only supplement it. It
is now firmly established that in the absence of express provisions in any statute dispensing with
the observance of the principles of natural justice, such principles will have to be observed in all
judicial, quasi-judicial and administrative proceedings which involve civil consequences to the
parties

Natural Justice recognizes three principles:

(i) Nemo debet essc judex in propria causa.

The first two have come to us from the Roman Law and the third one is a recent Innovation due
to the rapid development of the constitutional as well as administrative law.
NEMO DEBET ESSC JUDEX IN PROPRIA CAUSA

The first principle of impartiality roughly translated into English means nobody shall be a judge
in his own cause or in a cause in which he is interested. This principle is more popularly known
as the Doctrine of Bias. That is the authority sitting in judgment should be impartial and act
without bias. To instill confidence in the system, justice should not merely be done but seen to
be done. Free from bias means there should be absence of conscious or unconscious prejudice to
either of the parties. Bias is of four types:-

Pecuniary Bias

It is obvious that decision of the adjudicator would be affected if he is having pecuniary interest
in the subject matter of the proceedings. In Mohapatra vs. State of Orissa (AIR 1984 S.C. 1572),
it was held that when the author of a book was a member of the committee set up for selection of
books, and his book was also under consideration by that committee, the possibility of bias could
not be ruled out and the selection by that committee cannot be upheld. Thus, in addition to the
direct personal interest, the test laid down by the court is to consider the real likelihood of bias.
In other words, probability of bias is sufficient to invalidate the right to sit in judgment and there
is no need to have the proof of actual bias. A pecuniary interest, however slight will disqualify,
even though it is not proved that the decision is in any way affected. In Manak Lal v. Premchand
Shinghvi, a complaint was filed by A against B, an advocate for alleged act of misconduct. A
disciplinary committee was appointed to make an enquiry into the allegation 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.

Personal Bias

Personal bias may arise out of friendship, relationship, professional grievance or even enmity.
Here again likelihood of bias is to be given more credence than for the actual bias. ―it is
difficult to prove the state of mind of a person. Therefore, we have to see whether there is
reasonable ground for believing that he was likely to have been biased. For example, in Tata
Motor Challenge vs. Government of West Bengal, on the constitutional validity of Singur Land
Rehabilitation and Development Act, Justice Saumitra Pal recused himself from the case, citing
that he knew some of the people in relation with the case personally. In case of R v.
Handle(1921) 6I DLR 585, a Magistrate who was beaten by the accused was held disqualified
from hearing a case against that accused.

Official Bias

The third type of bias, namely, official bias may arise in cases where an administrator who
enunciates, and then has to carry out an official policy, is entrusted with the duty of hearing
objections from the concerned persons as to the implementation of the policy. Here the general
rule is that the bias that may be said to be likely to arise because the adjudicator has a general
interest in the subject matter and administration of the policy in his official capacity, would not
operate as a disqualification. The mere fact that the Registrar of Cooperative Societies has a
power of general supervision over all Co-operative Societies, does not amount to inherent bias in
him so as to disqualify him for the purpose of acting as an arbitrator or judge under Section 18 of
the Rules made under the Co-operative Societies /Act 1912 to decide disputes between members
of a Society (Viraj vs. State of Orissa 1967 SC 158). Thus, no official bias arises while senior
officers adjudicate the Customs or Central Excise or Service Tax cases even though the
investigations in the case might have been conducted by their subordinates.

Judicial obstinacy

There also may be judicial bias, i.e. bias on account of judicial obstinacy. In this the test is
whether there is real likelihood of bias in the judge. Prof. De Smith says, real likelihood of bias
means at least substantial possibility of bias. The court will have to judge a matter in conduct of
his own business. Lord Herwart CJ the answer to the question whether there was real likelihood
of bias “depends not upon what actually was done 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”. Justice must be rooted in confidence and the confidence is destroyed when
right-minded people go away thinking ‘judge was biased’. In Manak Lal v. Premchand Shinghvi,
a complaint was filed by A against B, an advocate for alleged act of misconduct. A disciplinary
committee was appointed to make an enquiry into the allegation 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.

AUDI ALTEREM PARTEM

The second principle of natural justice literally means ―to hear the other side. This is necessary
for providing a fair hearing and no doubt the rule against bias would also be a part of the
procedure. A corollary has been deduced from the above two rules and particularly the audi
alteram partem rule, namely ‗qui aliquid statuerit parte inaudita alteram actquam licet dixerit,
haud acquum facerit‘ that is, ‗he who shall decide anything without the other side having been
heard, although he may have said what is right, will not have been what is right‘ or in other
words, as it is now expressed, ‗justice should not only be done but should manifestly be seen to
be done‘.

The concept has gained significance and shades with time. When the historic document was
made at Runnymede in 1215, the first statutory recognition of this principle found its way into
the ‘Magna Carta’. The classic exposition of Sir Edward Coke of natural justice requires to
‘vocate, interrogate and adjudicate’. In the celebrated case of Cooper v. Wandsworth Board of
Works [(1863) 143 ER 414], the principle was thus stated:-

“Even God did not pass a sentence upon Adam, before he was called upon to make his defence.
“Adam” says God, “where art thou? Hast thou not eaten of the tree whereof I commanded thee
that thou shouldest not eat”

It says that no one should be condemned unheard. Notice is the first limb of this principle. It
must be precise and unambiguous. It should appraise the party determinatively the case he has to
meet. Time given for the purpose should be adequate so as to enable him to make his
representation. In the absence of a notice of the kind and such reasonable opportunity, the order
passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of
the case before any adverse order is passed against him. This is one of the most important
principles of natural justice. It is after all an approved rule of fair play.

When it is said that hear the other side. It means that hearing should not be reduced to mere
formality and it does not remain confined to only auditory hearing. It should be effective hearing.
The principle or effective hearing embraces a larger sphere and includes the following essential
aspects :

1. Issuance of Notice –
Prior notice of decision making:- Giving of a valid notice to the proper or concerned
person of the facts of the matter and nature of the action proposed to be taken is a sine
qua non of a fair hearing. Notice is to be given even if the statute does not contain any
provision for the issue of a notice (Fazalbhai Vs Custodian AIR 1961 SC 284). However,
if the statute specifically waives giving of the notice then no notice need be given as the
rules of natural justice do not supplant the law. Courts have also held that submission of
suo moto revision or the claim that there can be no defence to the action proposed cannot
justify department i.e. from this requirement of natural justice (Olga Tellis vs BMC AIR
1986 SC 180)
2. Notice to Indicate Evidence Being Relied Upon –
The notice must clearly indicate material on the basis of which the proposed action is
being taken. The right to know such material is part of the right to defend oneself. Then
only the person will have a fair opportunity to defend, correct or contradict them. In Hi-
Tron Electronics v. Commissioner (1989 (42)), the Tribunal observed that even in a case
where the party has waived the right to receive a show cause notice, the duty of
disclosing the documents on the basis of which the order (regarding valuation) was to be
passed should have been disclosed to the party and the order passed without such
disclosures was liable to be set aside. The person against whom proceedings are held
cannot be punished for a charge different from the one for which notice had been given.
3. Right to make Representation –
The right to make representation requires that the person proceeded against must have
opportunity to peruse all material relied upon. Copies of such material should be
furnished free of charge without being demanded and even in those cases where the
documents having been seized from the party, are relied upon. Furnishing of these
copies would include copies of test reports, trade opinions, international price
publications, etc. Reliance of any document or material without furnishing the above
requisites would render the ultimate decision bad for failure of natural justice. In Kothari
Filaments vs Commissioner of Customs (Port) Kolkata (Citation:- 2009 (233) ELT 289
 (SC) ), an order was passed with reference to an overseas enquiry report which was not
supplied to the party. SC found the order to be violation of principles of natural justice,
further imposing a fine of Rs. 25000 on the department
4. Reasonable time to file Reply –
After the notice has been received by the person, he must be given opportunity to make a
representation in reply thereto. This opportunity must be real and effective. This right to
make representation also involves grant of sufficient time to prepare the reply. Thought
refusal of further time for preparation of reply is within the discretion of the adjudicating
authority, the refusal should not be arbitrary or fanciful (Commissioner vs. Prestige
Engineering (1989 (41) ELT. 530)).
5. Grant of Personal Hearing –
Opportunity for hearing also includes personal hearing apart from making written
representation. Requirements of a fair hearing has two elements-First that Opportunity to
be heard must be given and second that Such opportunity must be real and not illusory
and make believe. A fair and reasonable hearing means a hearing which is adequate for
the purpose of bringing before the officer who makes the decision all the relevant
submissions. If fresh factual evidence is brought in and is likely to influence the decision,
a fresh hearing should be given.
6. Personal Hearing and Decision by the same officer –
The requirement of fair hearing involves decision being taken by the officer who heard
the case. If after hearing, that particular officer is transferred, normal rule would be that
the successor must hear the arguments afresh before he could pass an order (Amir Singh
AIR 1965 Punj 84).
7. Fixing Multiple Dates of PH in Single Letter Violation of PNJ –
Another practice being followed in the field is to fix multiple choice by fixing three dates
of personal hearing for appearance before the adjudicating authority in one letter. In the
case of Bindal Sponge Limited vs. Commissioner of Central Excise, Bhubaneswar
[Tribunal Order No. ST/A/15/2010 dated 27.08.2012] as well as in the case of Afloat
Textiles (P) Limited vs. Commissioner of Central Excise, Vapi [ citation: 2007 (215)
ELT 198 (Tri-Ahmedabad)], the Tribunal held that such approach is not in accordance
 with the principles of natural justice and remanded the case for fresh adjudication after
giving reasonable opportunity to the party to put forth their case.
8. Cross Examination –
The right to fair hearing involves the right of the affected party to cross-examine the
makers of statements. The Tribunal had time and again held that denial of cross
examination of witnesses, whose statements were relied upon, amounted to violation of
principles of Natural Justice. Refusal to allow cross-examination of departmental officers
constituted violation of Principles of Natural Justice. Cross examination of the officers
who effected the seizure cannot be denied on the ground that it was not relevant for the
defence. This right can fully be denied in exceptional cases and only for justifiable
reasons or where statute denies the right. Cross examination is covered under Section
137 of the Indian Evidence Act, 1872 (as amended). Quasi-judicial proceedings are not
governed strictly by the provisions of law observed by the Courts in the legal proceedings
before them. Requests for cross-examination may be denied under the following
situations.
(i) Warranting cross examination of the source (informer):
(ii) When there are enough and more documentary evidences, the copies of all of which
furnished;
(iii) When the witnesses to be made available for cross examination are in foreign
countries and the expenditure involved will not be commensurate with the seizure,
revenue involved etc. and
(iv) Enough care to be taken in allowing cross examination of experts by another expert
which should not unnecessarily protract or prolong the proceedings. The reasons for
denial should be clearly detailed in the order passed.

However, refusal of permission to cross-examine witnesses of the party himself would not
amount to denial of natural justice (Ludhiana Food Products 1990 (47) E.L.T. 294).

Right of Legal Representation (p) Fair hearing also involves right of the legal representation
during enquiry. Here the rule is that when one of the parties is represented by counsel, or at least
legally trained persons, the right of the other side to be represented by counsel is not to be
denied. (A.K. Roy AIR 1982 SC 710)
ISSUANCE OF SPEAKING ORDERS OR REASONED DECISION

The third aspect of natural justice requires speaking orders or reasoned decisions. It is now
universally recognized that giving reasons for a certain decision is one of the fundamentals of
good administration and a safeguard against arbitrariness. The refusal to give reasons may excite
the suspicion that there are probably no good reasons to support the decision. Hence reasons are
useful as they may reveal an error of law, the grounds for an appeal or simply remove what
might otherwise be a lingering sense of injustice on the part of the unsuccessful party. When the
order to be passed is an appealable order, the requirement of giving reasons would be a real
requirement. Thus, reasons are also required to be given when the appellate or revisionary
authority affirms the order of the lower authority.

EXCEPTION

During Emergency:

In India, it has been generally acknowledged that in cases of extreme urgency. where interest of
the public would be jeopardized by the delay or publicity involved in a hearing, a hearing before
condemnation would not be required by natural justice or in 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 paralyze the process the law will exclude
it. No one can claim the right to be heard during the time of an emergency. The Emergency
Power Act 1936 authorized the Government to make a regulation under the Act through which a
person can be detained without any reason for the safety and security of the county.

In Mohinder Singh Gill vs. CEC, 1978 SCR (3) 272 case, in Firozhpur Constituency
Parliamentary Election counting was been going on. One candidate was having a very good lead
but before the declaration of the results, in mob violence in some segments ballot papers and
boxes were been destroyed. The ECI acting under Article 324, 329 without giving any notice or
hearing to the candidates cancelled the Election and ordered for fresh Election. The SC rejected
the claim of notice and Audi Alteram Partem and held that in case of emergency, Audi Altrem
Partem can be excluded.
In Swadeshi Cotton Mills V. Union of India, AIR 1981 SC 818 case, the court held that the word
"immediate" in section 18-A of the Industries (Development and Regulation) Art cannot stand in
the way of the application of the rules of natural justice.

Statutory Exclusion:

Aground on which hearing may be excluded is that the action of the Administrative in question is
legislative and not administrative in character.

In Char. Lai Salm vs UOI, [1990/ 1 SCC 613 (Bhopal Gas Disaster 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 percent share in the
Union Carbide Company and as such it was a joint tortfeasor and thus there was a coflict
between the interests of the government and the victims. The court negative the contention and
observed that even if the argument was correct the doctrine of necessity would be a liable 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 no attracted.

Confidentiality

Exclusion of natural justice can also take place when confidentiality is demanded and H
necessary to be maintained. In Malak Singh v. State of P&H, E1981] 1 SEC 420 case, the SC
held that the maintenance of Surveillance Register by the Police is a confidential document and
neither the person whose name is entered in the Register nor any other member of the public can
have excess to it. Furthermore the Court observed that 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.

Impracticability:

Natural justice can be followed and applied when it is practicable to do so but in a situation when
it is impracticable to apply the principle of natural justice then it can be excluded.
In Bihar School Examination Board v. Subhash Chandra, AIR 1970 SE 1269 case. the Board
conducted the final tenth standard examination. At a particular centre, where there were more
than a thousand students, it was alleged to have mass copying. Even in evaluation, it was prima-
facie found that there was mass copying as most of the answers were the same and they received
the same marl,. For this reason, the Board cancelled the exam without giving any opportunity of
hearing and ordered for fresh examination, whereby all students were directed to appear for the
same. Many of the student, approached Patna HC challenging it on the ground that before
cancellation of the exam, no opportunity of hearing had been given to the students. The HC
struck down the decision of the Board in violation of Audi Alteram Partem. The Board
unsatisfied with the decision of Me Court approached the SC. The SC rejected the HC judgment
and held that in this situation, conducting hearing is impossible as a thousand notices have to be
issued and everyone must be given an opportunity of hearing, cross-examination, rebuttal,
presenting evidence, etc. which is not practicable at all. So, the SC held that on the ground of
impracticability, hearing can be excluded.

In R. Radhakrishnan V. Osmania University, where the entire MBA entrance examination was
cancelled by the university because of mass copying, 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

Legislative actions

When the law-making body itself propounds.at.is principle will not be applicable in the said
statute, then .is principle is not applicable in .e cases which will come under the particular
statute. In Charms LaI Sahu vs. UOI, [1990/ ISM 613 case, the constitutional validity of the
Bhopal Gas Disaster (Processing of Claims)ALI198S was involved. This legislation provides for
details of how to determine claims and pay them. The affected parties approached the SC and
contended that no hearing was provided to them and it was violative of Audi Alteram Partem.
The SC held, "For legislation by Parliament no principle of natural justice is attracted, provided
such legislation is within the competence of the Legislature."

Academic Evaluation
Where the nature of authority is purely academic then no right of hearing can be claimed. The
academic administration can take any action towards the students or the staff members if they
feel that things are not working properly inside the institution. And it cannot be challenged until
and unless the contrary is proved. In Jawaharlal Nehru University v. B.S. Name,
[1980]4SCCKSO case, BS Narwal, a student of JNU was removed from the rolls for
unsatisfactory academic performances without being given any pre-decisional hearing. The
Supreme Court 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
asses the work of a student over a period of time and declare his work unsatisfactory, the rules of
natural justice may be excluded. The Supreme Court held the suspension valid.

In Karnataka Public Service Commission v. B. IA. Vaidya Shenker, NR 199250 952 case, where
a candidate appearing for a civil service examination wrote her number, not only on the first
page of the answer book but also on all the pages of the answer book contra, to the specific
instructions given to candidates, which were also printed on the first page of the answer book.
The Court held that the Public Service Commission is justified in not evaluating her answer
book. No hearing was required to be given to such a candidate. In Board of High School v.
Kumari Chitra Srivastava, AIR1970 SC 1039 case, where student was not allowed to appear at
an examination on the ground of shortage of attendance, the Court set aside the order on the
ground that no notice was given to her before taking action in the matter. The Court brushed
aside the Boards argument that no useful purpose would have been served.

Contractual Arrangement

In case of termination arrangement in contract principle of natural justice are not applicable. In
State of Gujarat V. M.P. Shall Charitable Trust. 1.1 SCC (3) 552 case, 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 art judicially is not attracted.

Inter-Disciplinary Action

In Inter-disciplinary action like suspension etc, there is no requirement to follow the principle of
natural justice. In S.A. Khan vs. State of Haryana AIR 1993 SC 11 case, Mr. Khan an IPS Officer
holding the post of Deputy Inspector General of Haryana; Haryana Gory, was suspended by the
Haryana Government due to various complaint against him. Thus, he approached the Supreme
Court on the ground of violation of the principle of natural justice as he was not given an
opportunity to be heard. The SC held that the suspension being interim-disciplinary action, there
is no requirement to afford hearing. It can be ordered without affording an opportunity of
hearing.

Government Policy Decision

For developmental policy decision there is no need to follow principles of natural justice. In
Balco Employees' Union Vs U0I, [2002] 2 SCC 333 case, the Supreme 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, the employees had challenged the Governments policy decision
regarding disinvestment in public sector undertaking. The court held that unless the policy
decision to disinvest is capricious, arbitrary, illegal or uninformed and is not contrary to law. the
decision to disinvest cannot be challenged on the ground of violation of the principles of natural
justice.

No Right of the Person Is Infringed

Where no right has been conferred on a person by any rt.. 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, AIR 1991 SC 1456 case, the Electricity Board had withdrawn the concession
in electricity rate without any notice and hearing to the appellant. The Court held that a
concession can be withdrawn at anytime without affording any opportunity of hearing to affected
persons except when the law requires otherwise or the authority is bound by promissory
estoppels. 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.

In J.R. Vohra v. Indian Export House, AIR 1985 SC 475 case, the Court held that where no right
has been conferred upon a person by any statute nor any such right arises from common law, the
principles of natural justice are not applicable.
Interim Preventive Action

If the action of the administrative authority is a suspension order in the nature of preventive
action and not a final order the application of the principles of natural justice may be excluded.

In Abhay Kumar V.K. Srinivasan, AIR 1981 Delhi 381 case, 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.

Public interest:

Any act or thing done against the interest of the general public will be held void ab initio. As
being a democratic country, the laws are made for the benefit of the public. Hence, if there is a
hidden interest of the public in any issue, then the principle of Audi Alterem Patem will be
excluded.

'Useless Formality' Theory

Useless formality is yet another exception to the application of the principles of natural justice.
Where on 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.

In Aligarh Muslim University v. Manner Ali Khan, AIR 2000 SC 2783 case, a rule provided that
if an employee remained absent without permission for a particular period of time, it would
result in automatic termination of his employment. Manssor remained absent for more than five
years without permission, his post was deemed to have been vacated. Manssor challenged this on
the ground that the rules of natural justice were violated as he was not given an opportunity to be
heard before the post was declared to be vacant The Supreme Court rejected the argument and
held that there was no prejudice to Manssor in the facts of the case. If Manssor had been heard it
would not have made any difference.