MODULE 4 ADMIN LAW

Rule of Natural Justice:

The principles of natural justice are enforceable on all courts of law, general or special, all
tribunals (statutory or otherwise), and all persons or bodies exercising a judicial or quasi-
judicial function by statute or by agreement between the parties. This applies equally to any
domestic enquiry.
Natural justice is a great humanising principle intended to invest law with fairness and to
secure justice and over the years it has grown into a widely pervasive rule affecting large
areas of administrative action (Maneka Gandhi v UOI). The courts have always insisted that
the administrative agencies must follow a minimum of fair procedure i.e. principles of natural
justice. Natural justice is a concept of common law, and represents higher procedural
principles developed by judges. It enjoys express constitutional status (i.e. not embodied).
In India, the principles of natural justice are firmly grounded in Articles 14 and 21 of
Constitution. With the introduction of concept of substantive and procedural due process in
Article 21, all that fairness which is included in Article 21 can be read into Article 21. The
violation of natural justice results in arbitrariness, therefore, violation of natural justice is
violation of equality clause of Article 14.
The concept of natural justice has undergone a great deal of change in recent years. In the
past it was thought that it included, just two rules, namely rule against bias, and rule of fair
hearing. A third rule also now envisaged i.e. quasi-judicial enquiries must be held in good
faith; without bias and not arbitrarily. In the course of years, many more subsidiary rules
came to be added [A.K. Kraipak v Union of India (1970) 1 SCR 457].

The principles of natural justice in brief are as follows:

1. That every person whose rights are affected must have a reasonable notice of the
matter he has to meet.
2. That he must have reasonable opportunity of being heard in his defence.
3. That the hearing must be by an impartial person i.e. a person who is neither directly
nor indirectly a party to the case. One who has an interest in litigation is already
biased against the party concerned.
4. That the authority hearing the case, must act in good faith and not
arbitrarily but reasonably.

RULE AGAINST BIAS (NEMO JUDEX IN CAUSA SUA):

According to maxim Nemo judex in causa sua,
1) no one should be made a judge in his own cause)
2) justice must not only be done but seen to be done.)
Bias means an operative prejudice whether conscious or unconscious in relation to a party or
issue. The requirement of this rule is that judge must be impartial..., a person cannot take an
objective decision in a case in which he has an interest. Dictionary meaning of the term bias
suggests anything which tends a person to decide a case other than on the basis of evidences.
A decision which is a result of bias is a nullity.
Even if the deciding officer was as impartial as could be, nevertheless if right minded persons
would think that there was a real likelihood of bias, the deciding officer is disqualified.
Therefore, the court would not enquire whether there was bias in fact. Suffice it that
reasonable people might think that there was a bias. In Rattanlal Sharma v Managing
Committee (AIR 1993 SC 2155), the court said: The test of bias is whether a reasonable
intelligent man, fully apprised of all circumstances, would feel serious apprehension of bias.
1. Pecuniary bias - The judicial approach is unanimous on the point that any financial
interest, however small it may be, would vitiate administrative action.

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.

(b) Departmental bias/Official bias - In proceedings before an administrative

authority, one of parties is usually the administration itself, the authority may have
"official" bias towards the department with which it is attached, or may have a
"policy" bias i.e. interested in projecting and pursuing the policies of department.
Thus, departmental bias is something which is inherent in the administrative process.

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.

RULE OF FAIR HEARING (AUDI ALTERAM PARTEM):

The expression audi alteram partem implies that a person must be given an opportunity to
defend himself. This principle is a sine qua non of every civilised society. Administrative
difficulty in giving notice and hearing a person cannot provide any justification for depriving
the person of opportunity of being heard.
The principle includes the following procedure in any proceeding:
1. Right to Notice - Unless a person knows the formulation of subjects 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.

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.

(b) Legal Representation (Right to Counsel)- Legal representation 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 in administrative action is
justified on the ground that lawyers tend to complicate matters, prolong proceedings
and destroy the essential informality of proceedings.

There is no inherent common law right to legal representation before a domestic

tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified
counsel to assist the person appearing before it, based on the facts of the case.
 Some statutes (e.g. Industrial Disputes Act, 1947) specifically bar appearance of
lawyers before authorities constituted under the Act.

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.

4. No evidence to be taken at the back of other party (Disclosure of evidence to the

party): It is a fundamental principle of natural justice that no material should be
relied on against a party without his being given an opportunity of explaining them.
The right. to know the materials (e.g. reports, evidences, statements, etc.) on which
the authority is going to take a decision is a part of the right to defend oneself.

In HIRA NATH MISHRA V PRINCIPAL, RAJENDRA MED. COLLEGE, 36

girl students of a medical college filed a report with the Principal regarding
misbehaviour of the boys of the same college in the girls' hostel. The Enquiry
Committee appointed by Principal recorded the statements of girls in the absence of
appellants. The Committee found appellants guilty and an expulsion order was served
on them by the Principal of the college.

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.

POST DECISIONAL HEARING:

Post decisional hearing means hearing after the decision is reached. Where an action is
required to be taken immediately without giving an advance notice and opportunity to be
heard, can a post-decisional hearing mitigate the injustice caused by the lack of a pre-
decisional hearing? The idea of post-decisional hearing has been developed to maintain a
balance between administrative efficiency and fairness to the individual. This harmonizing
tool was developed by the Supreme Court in Maneka Gandhi v Union of India (AIR 1978 SC
597).
Pre-decisional hearing is the standard norm of rule of audi alteram partem. But post-
decisional hearing at least affords an opportunity to the aggrieved person and is better than
no hearing at all.
Whenever pre-decisional hearing is not feasible or not possible or cannot be conducted due to
nature of the case, post-decisional hearing can be provided. If an area is devastated by flood,
one cannot wait to issue show cause notices for taking out of the vehicles in order to rescue
people. If there is any emergency or any epidemic, presumption lies that one may not have to
issue show cause notices to requisite beds in hospitals, public or private. In such situations, it
is enough to issue post-decisional notices providing for an opportunity to be heard. This
would fulfill the requirements of principles of natural justice.
The principle of the post-decisional hearing was propounded by the Supreme Court in
Maneka Gandhi v. Union of lndia. For this situation, the Supreme Court set out the rule that
if in the interest of the general public, quick action was fundamental and it is impractical to
manage the cost of a hearing before the decision, it ought to be managed after the decision.
The passport of the petitioner who also happened to be a journalist was seized by the
Government of India in light of a legitimate concern for public wellbeing.
The petitioner was not given any chance before making the impugned move. At the point
when the legitimacy of the impoundment request was checked, the Government battled that
the use of the audi alteram partem rule would have gone against the very reason for seizing
the passport.
Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle
of post-decisional hearing in instances of outstanding nature. lt set out the recommendation
that wherein an emergent circumstance, requiring prompt activity, it is not possible to give
prior notice of hearing the preliminary action should be soon followed by a full remedial
hearing.
The idea of post-decisional hearing has been developed to maintain a balance between
administrative efficiency and fairness to the individual. The court stressed that a fair
opportunity of being heard following immediately the order impounding the passport would
satisfy the mandate of natural justice.
EXCEPTION TO THE RULE OF NATURAL JUSTICE:
The word 'exception' in the context of natural justice is a misnomer, because in certain
situations the principles of natural justice are inapplicable not by way of an exception but
because nothing unfair can be inferred by not applying these principles.
1. Exclusion in 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.
In Swadeshi Cotton Mill case also the court held that even in emergent situations the
fair hearing rule cannot be dispensed with though it may be 'a short measure of fair
hearing adjusted to the exigency of the situation'.

2. Exclusion in cases of confidentiality: In S.P. Gupta v Union of India (1981) Suppl.

SCC 87, held that no opportunity of being heard can be given to an Additional Judge
of a High Court before his name is dropped from being confirmed. It is important to
note that generally the court is inclined against confidentiality and would prefer
open government.

3. Exclusion in case of routine matters: In Karnataka P.S.C. v B.M. Vijay Shanker

(1992) 2 SCC 206, when the Commission cancelled the examination of the candidate
because, in violation of rules, candidate wrote his roll number on every page of the
answer book, the court held that the principles of natural justice are not attracted. It is
important to note that this exclusion shall not apply in case of disciplinary matters or
where the academic body permits non-academic circumstances.

4. Exclusion based on impracticability: In P. Radhakrishnan v Osmania University

(AIR 1974 A.P. 283), the court sanctified the exclusion of the rules of natural justice
on the ground of administrative impracticability. In this case the entire M.B.A.
entrance examination was cancelled by the university because of mass copying, the
court held that notice and hearing to all the candidates is not possible in this situation,
which has assumed national proportions Similarly, held in Bihar Secondary Exam
Board v Subash Chandra AIR 1970 SC 1269].

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. Thus, in
Abhay Kumar v K. Srinivasan (AIR 1981 Del. 381), the institution passed an order
debarring the student from entering the institution and from attending classes till the
pendency of a criminal case against him for stabbing a co-student. The court 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 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.

7. Exclusion in case of statutory exceptions or necessity: The rule of necessity is a

judicial doctrine that permits a judge or agency decision maker to decide a case even
if he or she would ordinarily be disqualified due to bias or prejudice. Disqualification
on the ground of bias against a person will not be applicable if he is the only person
competent or authorised to decide the 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.

Effect of Breach of Natural Justice:

Rules of natural justice have to be followed as a matter of public policy. The rules of natural
justice know of no exclusionary rule dependent on whether it would have made any
difference if natural justice had been observed. The non-observance of natural justice is itself
prejudice to any man and proof of prejudice independently of proof of denial of natural
justice is unnecessary [S.L. Kapoor v Jagmohan AIR 1981 SC 136].
The question whether failure to observe the rules of natural justice makes the decision "void"
or "voidable" has arisen in recent years. There is a viewpoint that failure to observe the
principles of natural justice amounts to acting ultra vires and therefore such an action must be
void ab initio. On the other hand, we have cases in which decisions though taken without
compliance with the rules of natural justice were not set aside. "Every violation of rules of
natural justice may not be sufficient for invalidating action taken by competent
authority/employer and the court may refuse to interfere if it is convinced that such violation
has not caused prejudice to affected person/employee" [Indu Bhusan Dwivedi v State of
Jharkhand AIR 2010 SC 2472].
The courts are unanimous that a decision rendered in violation of the rule against bias is
merely voidable and not void. The aggrieved party may thus waive his right to avoid the
decision; as where timely objection is not made even though there is full knowledge of the
bias and the right to object to it (Manak Lal v Dr. Prem Chand AIR 1957 SC 425).
However, there is fundamental disagreement amongst the courts and jurists as to the effect of
a breach of the rule of fair hearing on any decision.