Audi Alteram Partem

Santosh Upadhyay
Assistant Professor
LC II, FOL, DU
• No one should be condemned unheard, Both
the sides must be heard before passing a
judgement.
• Basic requirement of rule of law, the most
fundamental and foundational concept of
fairness and justice in human society. Basic
jurisprudential principle of civilised society.
• A party is not to suffer in person or in purse
without an opportunity of being heard.
 Right to Cross Examination
H N Mishra v Principal Rajendra Medical College
• The appellants were the student of medical college.
They were accused of serious misbehaviour with
girls inside the premises of the Girls’ hostel. The
complaint was made against them and after the
inquiry, they were found guilty and rusticated from
the college for two years. They claimed that
principles of Natural Justice were not complied
because the name of the complainants were not told
to them, neither any opportunity of cross examining
of witnesses were provided to them.
• While rejecting their claims, Court observed that: The college authorities are in
no position to protect the girl students outside the college precincts. Therefore,
the authorities had to devise a just and reasonable plan of enquiry which, on the
one hand, would not expose the individual girls to harassment by the male
students and, on the other, secure reasonable opportunity to the accused to state
their case. Accordingly, an Enquiry Committee of three independent members
of the staff was appointed. There is no suggestion whatsoever that the members
of the Committee were anything but respectable and independent. The
Committee called the girls privately and recorded their statements. Thereafter
the students named by them were called. The complaint against them was
explained to them. The written charge was handed over and they were asked to
state whatever they had to state in writing. The Committee was not satisfied
with the explanation given and thereafter made the report. We think that under
the circumstances of the case the requirements of natural justice were fulfilled.
• Taking all the circumstances into account it is not possible to say that rules
of natural justice had not been followed. In Board of Education v. Rice
[1911 AC 179], Lord Loreburn laid down that in disposing of a question,
which was the subject of an appeal to it, the Board of Education was under
a duty to act in good faith, and to listen fairly to both sides, inasmuch as
that was a duty which lay on everyone who decided anything. He did not
think that the Board was bound to treat such a question as though it were a
trial. The Board need not examine witnesses. It could, he thought, obtain
information in any way it thought best, always giving a fair opportunity to
those who were parties in the controversy to correct or contradict any
relevant statement prejudicial to their view. More recently in Russell v.
Duke of Norfolk (1949) 1 All ER 109, 118 Tucker, L.J. observed “There are,
in my view, no words which are of universal application to every kind of
inquiry and every kind of domestic tribunal. (Para, 12)
• The requirements of natural justice must depend on
the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is acting,
the subject-matter that is being dealt with, and so
forth. Accordingly, [the Court] does not derive much
assistance from the definitions of natural justice
which have been from time to time used, but
whatever standard is adopted, one essential is that the
person accused should have a reasonable
opportunity of presenting his case.
• Rules of natural justice cannot remain the same applying to all conditions. We know of
statutes in India like the Goonda Acts which permit evidence being collected behind the
back of the goonda and the goonda being merely asked to represent against the main
charges arising out of the evidence collected. Care is taken to see that the witnesses
who gave statements would not be identified. In such cases there is no question of the
witnesses being called and the goonda being given an opportunity to cross-examine the
witnesses. The reason is obvious. No witness will come forward to give evidence in the
presence of the goonda. However unsavoury the procedure may appear to a judicial
mind, these are facts of life which are to be faced. The girls who were molested that
night would not have come forward to give evidence in any regular enquiry and if a
strict enquiry like the one conducted in a court of law were to be imposed in such
matters, the girls would have had to go under the constant fear of molestation by the
male students who were capable of such indecencies. Under the circumstances the
course followed by the Principal was a wise one. The Committee whose integrity could
not be impeached collected and shifted the evidence given by the girls. Thereafter the
students definitely named by the girls were informed about the complaint against them
and the charge. They were given an opportunity to state their case. We do not think that
the facts and circumstances of this case require anything more to be done.
 Right of Legal Representation
• J K Aggarwal v. Haryana Seeds Development Corpn Ltd: Appellant was the Company
Secretary in the Respondent Corporation. The legal issue that was in question was ‘whether
in the course the disciplinary inquiry initiated against the appellant by the Corporation on
certain charges, which if established might lead to appellant’s dismissal from service,
appellant was entitled to engage the services of a legal practitioner in the conduct of his
defence. The provisions of enquiry and dismissal of the appellant was governed by Rule
7(5) of the Haryana Civil Services (Punishment and Appeal) Rules, 1952:
“7.(5) Where the punishing authority itself enquires into any charge or charges or appoints an
enquiry officer for holding enquiry against a person in the service of the government, it
may, by an order, appoint a government servant or a legal practitioner to be known as a
“presenting officer” to present on its behalf the case, in support of the charge or charges.
The person against whom a charge is being enquired into, shall be allowed to obtain the
assistance of a government servant, if he so desires, in order to produce his defence before
the enquiring officer. If the charge or charges are likely to result in the dismissal of the
person from the service of the government. Such person may, with the sanction of the
enquiry officer, be represented by counsel.”
• Lord Denning observed in Pett v. Greyhound Racing Association Ltd., (1969): “I should
have thought, therefore, that when a man’s reputation or livelihood is at stake, he not
only has a right to speak by his own mouth. He also has a right to speak by counsel or
solicitor.”
• Enderby Town Football Club Ltd. v. Football Association Ltd. [1971 Ch D 591, 605-06]:
• “Is a party who is charged before a domestic tribunal entitled as of right to be legally
represented? Much depends on what the rules say about it. When the rules say nothing,
then the party has no absolute right to be legally represented. It is a matter for the
discretion of the tribunal. They are masters of their own procedure: and, if they, in the
proper exercise of their discretion, decline to allow legal representation, the courts will
not interfere…. In many cases it may be a good thing for the proceedings of a domestic
tribunal to be conducted informally without legal representation. Justice can often be
done in them better by a good layman than by a bad lawyer…. But I would emphasise
that the discretion must be properly exercised. The tribunal must not fetter its discretion
by rigid bonds. A domestic tribunal is not at liberty to lay down an absolute rule … The
tribunal must be ready, in a proper case, to allow it. ….”
• Court observed that: the respondent-Corporation was represented by its Personnel and
Administration Manager who is stated to be a man of law. The rule itself recognises that
where the charges are so serious as to entail a dismissal from service the inquiry
authority may permit the services of a lawyer. This rule vests discretion. In the matter of
exercise of this discretion one of the relevant factors is whether there is likelihood of the
combat being unequal entailing a miscarriage or failure of justice and a denial of a real
and reasonable opportunity for defence by reasons of the appellant being pitted against a
presenting officer who is trained in law… A decision has to be reached on a case to case
basis on the situational particularities and the special requirements of justice of the
case…
• Board of Trustees of the Port of Bombay v. Dilipkumar [(1983) Court observed that:
• “In our view we have reached a stage in our onward march to fair play in action that
where in an enquiry before a domestic tribunal the delinquent officer is pitted against a
legally trained mind, if he seeks permission to appear through a legal practitioner the
refusal to grant this request would amount to denial of a reasonable request to defend
himself and the essential principles of natural justice would be violated....”
• Court further observed that: the refusal to sanction the service
of a lawyer in the inquiry was not a proper exercise of the
discretion under the rule resulting in a failure of natural
justice; particularly, in view of the fact that the Presenting
Officer was a person with legal attainments and experience. It
was said that the appellant was no less adept having been in
the position of a Senior Executive and could have defended,
and did defend, himself competently; but as was observed by
the learned Master of Rolls in Pett case that in defending
himself one may tend to become “nervous” or “tongue-tied”.
Moreover, appellant, it is claimed, has had no legal
background. The refusal of the service of a lawyer, in the
facts of this case, results in denial of natural justice.
 Bharat Petroleum Corpn. Ltd. v Maharashtra
General Kamgar Union
• The Industrial Employment (Standing Orders) Act, 1946 was
made by Parliament to require employers of all industrial
establishments to define formally the conditions of
employment on which the workmen would be engaged.
• The object underlying this Act, which is a beneficent piece
of legislation, is to introduce uniformity of terms and
conditions of employment in respect of workmen belonging
to the same category and discharging the same and similar
work under the industrial establishment and to make the
terms and conditions of industrial employees well settled and
known to the employees before they accept the employment.
• The vital difference between the Model Standing Orders, as set out above, and the Draft
Standing Orders, as certified by the appellate authority, is that while under the Model
Standing Orders, a workman can be represented in the departmental proceedings by an
office-bearer of a trade union of which he is a member, he does not have this right under
the Draft Standing Orders, as certified by the appellate authority, which restrict his right of
representation by a fellow workman of his choice from amongst the employees of the
appellant-Corporation. The contention of the learned counsel for the appellant is that the
Model Standing Orders framed by the Central Government under the Industrial Employment
(Standing Orders) Central Rules, 1946 can operate only during the period of time when the
Standing Orders are not made by the establishment itself. If and when those Standing Orders
are made which, in any case, have to be compulsorily made in terms of the Act, they have to
be submitted to the Certifying Officer and if they are certified, they take effect from the date
on which they are notified and effectively replace the Model Standing Orders. The order of the
Certifying Officer is appealable before the appellate authority and the appellate authority can
legally interfere with the order passed by the Certifying Officer and set it aside or uphold it.
There is no restriction under the Act that the management or the establishment, or, for that
matter, the employer would adopt the Model Standing Orders. It is contended that the
Standing Orders have only to be in consonance with the Model Standing Orders besides
being fair and reasonable
• The Model Standing Orders, no doubt, provided that a delinquent employee could be
represented in the disciplinary proceedings through another employee who may not be the
employee of the parent establishment to which the delinquent belongs and may be an employee
elsewhere, though he may be a member of the trade union, but this rule of representation has not
been disturbed by the Certified Standing Orders, inasmuch as it still provides that the delinquent
employee can be represented in the disciplinary proceedings through an employee. The only
embargo is that the representative should be an employee of the parent establishment. The
choice of the delinquent in selecting his representative is affected only to the extent that the
representative has to be a co-employee of the same establishment in which the delinquent is
employed. There appears to be some logic behind this as a co-employee would be fully aware of
the conditions prevailing in the parent establishment, its Service Rules, including the Standing
Orders, and would be in a better position, than an outsider, to assist the delinquent in the
domestic proceedings for a fair and early disposal. The basic features of the Model Standing
Orders are thus retained and the right of representation in the disciplinary proceedings through
another employee is not altered, affected or taken away. The Standing Orders conform to all
standards of reasonableness and fairness and, therefore, the appellate authority was fully
justified in certifying the Draft Standing Orders as submitted by the appellant.
 Post- Decisional Hearing
• Maneka Gandhi v. Union of India : Appellant's Passport was
impounded by the Government without affording her any opportunity
of hearing under sec 10(3)(c) of Passports Act 1967 on the specific
ground “in the interests of the general public”. This was challenged on
many grounds and one of such ground was that an order under Section
10(3)(c) impounding a passport could not be made by the Passport
Authority without giving an opportunity to the holder of the passport
to be heard in defence and since in the present case, the passport was
impounded by the Government without affording an opportunity of
hearing to the petitioner, the order was null and void, and, in the
alternative, if Section 10(3)(c) were read in such a manner as to
exclude the right of hearing, the section would be infected with the
vice of arbitrariness and it would be void as offending Article 14.
• Court made following general observations about the Natural Justice: 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. It quoted Lord Morris “We can …
take pride in what has been done …particularly in the field of administrative
law by invoking and by applying these principles which we broadly classify
under the designation of natural justice. Many testing problems as to their
application yet remain to be solved. But I affirm that the area of administrative
action is but one area in which the principles are to be deployed. Nor are they
to be invoked only when procedural failures are shown. Does natural justice
qualify to be described as a “majestic” conception? I believe it does. Is it just a
rhetorical but vague phrase which can be employed, when needed, to give a
gloss of assurance? I believe that it is very much more. If it can be summarised
as being fair-play in action - who could wish that it would ever be out of
action? …
• Subsequently, it quoted from another judgement: ... We often
speak of the rules of natural justice. But there is nothing rigid
or mechanical about them. What they comprehend has been
analysed and described in many authorities. But any analysis
must bring into relief rather their spirit and their inspiration
than any precision of definition or precision as to application.
We do not search for prescriptions which will lay down exactly
what must, in various divergent situations, be done. The
principles and procedures are to be applied which, in any
particular situation or set of circumstances, are right and just
and fair. Natural justice, it has been said, is only “fair play in
action”. …
• Attorney General argued that having regard to the nature of the
action involved in the impounding of a passport, the audi alteram
partem rule must be held to be excluded, because if notice were to be
given to the holder of the passport and reasonable opportunity
afforded to him to show cause why his passport should not be
impounded, he might immediately, on the strength of the passport,
make good his exit from the country and the object of impounding the
passport would be frustrated. The argument was that if the audi
alteram partem rule were applied, its effect would be to stultify the
power of impounding the passport and it would defeat and paralyse
the administration of the law and hence the audi alteram partem
rule cannot in fairness be applied while exercising the power to
impound a passport.
• Replying with this argument, court observed that: This argument was
sought to be supported by reference to the statement of the law in S. A. de
Smith’s Judicial Review of Administrative Action, 2nd ed, where the
learned author says at page 174 that “in administrative law a prima facie
right to prior notice and opportunity to be heard may be held to be excluded
by implication...... where an obligation to give notice and opportunity to be
heard would obstruct the taking of prompt action, especially action of a
preventive or remedial nature”. Now, it is true that since the right to prior
notice and opportunity of hearing arises only by implication from the duty
to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from ‘fair-
play in action’, it may equally be excluded where, having regard to the
nature of the action to be taken, its object and purpose and the scheme of
the relevant statutory provision, fairness in action does not demand its
implication and even warrants its exclusion.
• Court observed that: There are certain well recognised exceptions to the audi alteram
partem rule established by judicial decisions. … The word ‘exception’ is really a misnomer
because in these exclusionary cases, the audi alteram pattern rule 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. The audi alteram
partem rule is intended to inject justice into the law and it cannot be applied to defeat the
ends of justice, or to make the law ‘lifeless, absurd, stultifying, self-defeating or plainly
contrary to the common sense of the situation’. Since the life of the law is not logic but
experience and every legal proposition must, in the ultimate analysis, be tested on the
touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential
test, be excluded, if importing the right to be heard has the effect of paralysing the
administrative process or the need for promptitude or the urgency of the situation so
demands. But at the same time it must be remembered that this is a rule of vital importance
in the field of administrative law and it must not be jettisoned save in very exceptional
circumstances where compulsive necessity so demands. It is a wholesome rule designed to
secure the rule of law and the Court should not be too ready to eschew it in its application to
a given case.
• The audi alteram partem rule is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modifications. The core of it must, however,
remain, namely, that the person affected must have a reasonable opportunity of
being heard and the hearing must be a genuine hearing and not an empty public
relations exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of
Norfolk that “whatever standard of natural justice is adopted, one essential is that
the person concerned should have a reasonable opportunity of presenting his case”.
What opportunity may be regarded as reasonable would necessarily depend on the
practical necessities of the situation. It may be a sophisticated full-fledged hearing
or it may be a hearing which is very brief and minimal: it may be a hearing prior to
the decision or it may even be a post-decisional remedial hearing. The audi
alteram partem rule is sufficiently flexible to permit modifications and variations
to suit the exigencies of myriad kinds of situations which may arise.
• It would not be right to conclude that the audi alteram partem rule is excluded merely because
the power to impound a passport might be frustrated, if prior notice and hearing were to be
given to the person concerned before impounding his passport The Passport Authority may
proceed to impound the passport without giving any prior opportunity to the person concerned
to be heard, but as soon as the order impounding the passport is made, an opportunity of
hearing, remedial in aim, should be given to him so that he may present his case and
controvert that of the Passport Authority and point out why his passport should not be
impounded…This should not only be possible but also quite appropriate, because the reasons
for impounding the passport are required to be supplied by the Passport Authority after the
making of the order and the person affected would, therefore, be in a position to make a
representation setting forth his case and plead for setting aside the action impounding his
passport. A fair opportunity of being heard following immediately upon the order impounding
the passport would satisfy the mandate of natural justice and a provision requiring giving of
such opportunity to the person concerned can and should be read by implication in the
Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act,
1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for
impounding a passport would be right, fair and just and it would not suffer from the vice of
arbitrariness or unreasonableness. We must, therefore, hold that the procedure ‘established’ by
the Passports Act, 1967 for impounding a passport is in conformity with the requirement of
Article 21 and does not fall foul of that article.
 H L Trehan v Union of India
• Through legislative mechanisms Government has
acquisitioned the Caltex Refining India Ltd in 1977.
Subsequently, the impugned circular was issued stating
that the perquisites and allowances admissible to the
Management staff would be rationalised in the manner
stated in the said circular. It was argued before High
Court that the said circular altered the service conditions
of the management staffs to their detriment and this,
without affording them any right to hearing; and High
Court on this ground quashed the said circular.
• SC Observed that: It is now a well established principle of law that
there can be no deprivation or curtailment of any existing right,
advantage or benefit enjoyed by a-government servant without
complying with the rules of natural justice by giving the
government servant concerned an opportunity of being heard. Any
arbitrary or whimsical exercise of power prejudicially affecting the
existing conditions of service of a government servant will offend
against the provision of Article 14 of the Constitution. Admittedly,
the employees of CORIL were not given an opportunity of hearing
or representing their case before the impugned circular was issued
by the Board of Directors. The impugned circular cannot, therefore,
be sustained as it offends against the rules of natural justice
• However, Company contended that after the impugned circular
was made, the opportunity of hearing was provided. On this
point, Court quoted KI Shephared case and also observed as
follows: In our opinion, the post-decisional opportunity of
hearing does not sub-serve the rules of natural justice. The
authority that embarks upon a post-decisional hearing will
naturally 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… once a decision has
been taken, there is a tendency to uphold it and a
representation may not yield any fruitful purpose. And the SC
upheld the order of the High Court.
 K.I. Shephard v. Union of India
• The Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank,
which were private banks, were amalgamated with Punjab National Bank, Canara Bank and
State Bank of India respectively in terms of separate schemes drawn under Section 45 of the
Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first
mentioned three banks were excluded from employment and their services were not taken
over by the respective transferee banks. Such exclusion was made without giving the
employees, whose services were terminated, an opportunity of being heard and Court
observed that: “We may now point out that the learned Single Judge for the Kerala High Court
had proposed a post-amalgamation hearing to meet the situation but that has been vacated by
the Division Bench. .. there is no justification to think of a post-decisional hearing. On the
other hand the normal rule should apply. It was also contended on behalf of the respondents
that the excluded employees could not represent and their case could be examined. We do not
think that would meet the ends of justice. They have already been thrown out of
employment and having been deprived of livelihood they must be facing serious difficulties.
There is no justification to throw them out of employment and then give them an
opportunity of representation when the requirement is that they should have the opportunity
referred to above as a condition precedent to action. It is common experience that once a
decision has been taken, there is a tendency to uphold it and a representation may not really
yields any fruitful purpose.”
 Requirement of Reasoned Decisions
S. N. Mukherjee v Union of India
• As per section 164 of the Army Act, 1950 any person who is aggrieved by the
findings of the court martial can present a petition to the designated officer
requesting not to confirm the findings of the court martial and even after such
confirment, the aggrieved person can again present a petition to the Central
Government or any other prescribed authority.
• Court Martial awarded the sentence of dismissal to the employee. Then his
petitions to the Chief of the Army Staff and thereafter post confirmation petition to
the Central Government were dismissed without giving any reasons. The basic
question in the case was whether the orders confirming the sentences of the Court
Martial need to give reasons. Court has divided the whole issue into two heads:
The question under consideration can be divided into two parts:
• (i) Is there any general principle of law which requires an administrative authority
to record the reasons for its decision; and
• (ii) If so, does the said principle apply to an order confirming the findings and
sentence of a court martial and post-confirmation proceeding under the Act?
• “164. (1) Any person subject to this Act who considers himself aggrieved
by any order passed by any court martial may present a petition to the
officer or authority empowered to confirm any finding or sentence of such
court martial and the confirming authority may take such steps as may be
considered necessary to satisfy itself as to the correctness, legality or
propriety of the order passed or as to the regularity of any proceeding to
which the order relates.
• (2) Any person subject to this Act who considers himself aggrieved by a
finding or sentence of any court martial which has been confirmed, may
present a petition to the Central Government, the Chief of the Army Staff
or any prescribed officer superior in command to the one who confirmed
such finding or sentence and the Central Government, the Chief of the
Army Staff or other officer, as the case may be, may pass such orders
thereon as it or he thinks fit.”
• On the first question, Court quoted many statements from different cases, it has quoted
from Woolcombers of India Ltd. Case “The giving of reasons in support of their
conclusions by judicial and quasi-judicial authorities when exercising initial
jurisdiction is essential for various reasons. First, it is calculated to prevent
unconscious unfairness or arbitrariness in reaching the conclusions. The very search
for reasons will put the authority on the alert and minimise the chances of unconscious
infiltration of personal bias or unfairness in the conclusion. The authority will adduce
reasons which will be regarded as fair and legitimate by a reasonable man and will
discard irrelevant or extraneous considerations. Second, it is a well known principle
that justice should not only be done but should also appear to be done. Unreasoned
conclusions may be just but they may not appear to be just to those who read them.
Reasoned conclusions, on the other hand, will have also the appearance of justice.
Third, it should be remembered that an appeal generally lies from the decision of
judicial and quasi-judicial authorities to this Court by special leave granted under
Article 136. A judgment which does not disclose the reasons, will be of little assistance
to the court.
• Court observed that the requirement of recording
reasons would (i) guarantee consideration by the
authority; (ii) introduce clarity in the decisions; and
(iii) minimize chances of arbitrariness in decision-
making. And Court answered the first question
except in cases where the requirement has been
dispensed with expressly or by necessary
implication, an administrative authority exercising
judicial or quasi-judicial functions is required to
record the reasons for its decision.
• Insofar as the findings and sentence of a court martial and the proceedings for confirmation of
such findings and sentence are concerned it has been found that the scheme of the Act and the
Rules is such that reasons are not required to be recorded for the same. Has the legislature
made a departure from the said scheme in respect of post-confirmation proceedings? There is
nothing in the language of sub-section (2) of Section 164 which may lend support to such an
intention. Nor is there anything in the nature of post-confirmation proceedings which may
require recording of reasons for an order passed on the post-confirmation petition even though
reasons are not required to be recorded at the stage of recording of findings and sentence by a
court martial and at the stage of confirmation of the findings and sentence of the court martial
by the confirming authority. With regard to recording of reasons the considerations which
apply at the stage of recording of findings and sentence by the court martial and at the stage of
confirmation of findings and sentence of the court martial by the confirming authority are
equally applicable at the stage of consideration of the post-confirmation petition. Since
reasons are not required to be recorded at the first two stages referred to above, the said
requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-
confirmation petition under Section 164(2) of the Act. For the reasons aforesaid it must be
held that reasons are not required to be recorded for an order passed by the confirming
authority confirming the findings and sentence recorded by the court martial as well as for the
order passed by the Central Government dismissing the post-confirmation petition.
Supply of Inquiry Report before Taking Action
Managing Director, ECIL v B. Karunakar
• whether the report of the enquiry officer/authority
who is appointed by the disciplinary authority to
hold an inquiry into the charges against the
delinquent employee, is required to be furnished
to the employee to enable him to make proper
representation to the disciplinary authority before
such authority arrives at its own finding with
regard to the guilt or otherwise of the employee
and the punishment, if any, to be awarded to him.
• Court observed that: It will thus be seen that where the enquiry officer
is other than the disciplinary authority, the disciplinary proceedings
break into two stages. The first stage ends when the disciplinary
authority arrives at its conclusions on the basis of the evidence,
enquiry officer’s report and the delinquent employee’s reply to it. The
second stage begins when the disciplinary authority decides to impose
penalty on the basis of its conclusions. If the disciplinary authority
decides to drop the disciplinary proceedings, the second stage is not
even reached. The employee’s right to receive the report is thus, a part
of the reasonable opportunity of defending himself in the first stage of
the inquiry. If this right is denied to him, he is in effect denied the
right to defend himself and to prove his innocence in the disciplinary
proceedings
• The position in law can also be looked at from a slightly different angle. Article 311(2) says
that the employee shall be given a “reasonable opportunity of being heard in respect of the
charges against him”. The findings on the charges given by a third person like the enquiry
officer, particularly when they are not borne out by the evidence or are arrived at by
overlooking the evidence or misconstruing it, could themselves constitute new unwarranted
imputations. What is further, when the proviso to the said Article states that “where it is
proposed after such inquiry, to impose upon him any such penalty, such penalty may be
imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary
to give such person any opportunity of making representation on the penalty proposed”, it in
effect accepts two successive stages of differing scope. Since the penalty is to be proposed
after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the
enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the
employee’s reply to the enquiry officer’s report and consideration of such reply by the
disciplinary authority also constitute an integral part of such inquiry. The second stage follows
the inquiry so carried out and it consists of the issuance of the notice to show cause against the
proposed penalty and of considering the reply to the notice and deciding upon the penalty.
What is dispensed with is the opportunity of making representation on the penalty proposed
and not of opportunity of making representation on the report of the enquiry officer. The latter
right was always there.
• Hence it has to be held that when the enquiry officer is not the
disciplinary authority; the delinquent employee has a right to
receive a copy of the enquiry officer’s report before the
disciplinary authority arrives at its conclusions with regard to
the guilt or innocence of the employee with regard to the
charges levelled against him. That right is a part of the
employee’s right to defend himself against the charges levelled
against him. A denial of the enquiry officer’s report before the
disciplinary authority takes its decision on the charges, is a
denial of reasonable opportunity to the employee to prove his
innocence and is a breach of the principles of natural justice.