CHAPTER 5

VIOLATION OF NATURAL JUSTICE

Principles of natural justice] are great humanis~ng

principles intended to invest law with fairness and to secure

justice and over the years they ha le grown into widely pervasive

rules affecting large areas of administrative action.2 To ensure

equal treatment3 and to exclude arbitrary power4 the

requirement of natural justice was read into the statutes and

applied to particular fact situations 5 The Supreme Court has

declared in explicit terms: "With the increase of the power of

the administrative bodies it has become necessary to prov~de

guidelines for the just exercise of their power. To prevent the

abuse and arbitrary exercise.6 and to see that it does not

- -- 1. The I&mt o f the C o m m i t t e e s Po

. . wers stared

that natural justice had scarcely ceased to be a moral and social principle and become a clear legal rule (p.75).

2 Maneka V . mn of i n b , A. I .R. (1978) S.C.597. 625.

3. Chaim Perelman, (Eng. Edn.1963) p.60.

4 . Ginsburg On (1965), p.71. . . .

5 . Wheare K . G . ' , ,

g on don' Hamlyn-veEd (yt73W3: ~ a t u r i l Justice is bein applied more wldely and I S

producing more case law $an even before . . . . ".

6. Sathe, S . P . Administrative Law (4th edn Bombay, Tripathi), p. 164.

become a new despotism, courts are gradually evolving the

prlnciples to be observed while exercising such powers ...."' By rule of law it is meant to maintain a balance between

administrative expediency and efficiency on the one hand and

the prevention of administrative arbitrariness and capriciousness

on the other.8

One of the main pitfalls of these prlnciples was that they

were no1 applicable against bodies exercising admin~strative

functions9 if not incorporated in the statute itself.10 Today the

administrat~ve authority is required to compl) with the

requirement of "fair p l a y " l l to decisions uhich affect the rlghts

of citizens In W V Shah. 1 . observed "It

IS true that the order is administrative In character, but even an

8 . Gopakumaran Nair. "New Horizons of Katural Justice'' 2 (1978) 253

9 May. C.J.: ID lLh%@muon of Dublin. (1878) 2 L.R Jr.371. The view of May C.1 was formulated into a definition by Atkin, L .J . in . , Commlssroners, (1923) All. E.R.Rep 150.

11. Clark, D.H. "Natural Justice, Substance and Shadow". (1975), Pub.L., 1975 p.27.

12. V Binaoanl A.I .R. (1967) S . C . 1269.

administrative order which involved civil consequences, as

already stated, must be consistently with the rules of natural

justice.. . " .

Even if the principles of natural justice are not embodled

rules, the generally accepted rules are (1) no man shali be a

judge of his own cause (-

Caua) (2) no man shall be punished unheard (audi alteram

partem), and (3) speaking orders (Reasoned decisions). It is a

fundamental principle that no man shall be a judge of his own

cause.13 The principle is that a judge is disqualified from

determining any case In which he may, or may fairly be

suspected to have an interest in the subject matter. The

underlying principle is that 'justice should not only be done, but

should manifestly and undoubtedly be seen to be d o d . 1 4 In

other words admlnistratibe tribunals must deal with the

questions referred to it without bias.15 The common law

distinguishes two types of bias, that arising from financial

interest and that a r~s ing from such causes as relationship to a

party or witness. The latter type of btas has often been

discribed as a challenge to favour as opposed to the first type

13. Halsbury's L w s of England (4th edn) p.81

14. Lord Hewart C.J. in & V . ~ x . ~ M c C a r i h ; . (1927) 1 K.B.256 , 259.

15. Lord Haldane in LQUI G o v e r n m e n t V. AIU& (1915) A.C.120, 132.

which is described as giving rise to an interest. Any drrect

pecuniary interest, however small is sufficient to disqualify a

person from acting as a j ~ d ~ e . 1 6 Any interest, motive or

influence which may impair the objectiveness of a decision or

may have the appearance of so doing will rnvalidaie a judicial or

quasi-judicial determination.17 In the case of A.K.KraiDak V .

U n i o n o f 8 the facts show that one of the members of a

selection board constituted to make the selection to a Central

cadre, u'as also a candidate for the interview. After the

interview, the name of rhe candidate appeared at the top of the

list. Thls was challenged as infringing the principles of natural

justice. It was held that as the member was one of the peryons

to be considered for selection it was against all canons of justice

to make him judge of his own cause. Though he did not

participate in the deliberation of the committee when his name

was considered,his presence in the selection board must have

had its own impact on the decision of the board. It was also

held that it was his interest to keep out his rivals in order to

keep his position safe. I t follows that the Supreme Court has

declared that there need not be any actual deliberation to make

it invalid.

16. Paul Jackson, Katural Justice 2nd Edition London, Sweet & Maxwell 1974 p .33 .

17 Allen, C.K. Law and O r & s (2nd Edn, p.279).

18. A. I .R. (1970) S . C . 150 (not a declaration case).

The rule against bias is based on three maxims.

1. No man shall be a judge in his o u n cause19

2. Justice should not only be done, but man~festly and

undoubtedly be seen to done.20

3 . Judges like Caesar 's wife should be above suspicion.

Anythtng which tends or may be regarded as tending to

cause a person to decide a case otherwise than on evidence must

be held to be btased. The first requirement is that the judge

should be impartial and natural and must be free from b ~ a s

One can not act as judge of a cause in n h i c h he himself has

some interest elther pecuniary or otherwise as it affords the

strongest proof against neutrality. One must be in a position to

act judicially and to decide the matter objectively. If the judge

is subject to bias in favour of or against either party to the

dispute or is in a position that a bias can be assumed, he is

disqualified to act as a judge and the proceedings will be

vitiated. It is a well settled principle of law that justice should

not only be done but manifestly and undoubtedly be seen to be

done. Justice can never be seen if a man acts as a judge In hls

own cause or is himself interested in its outcome. This

principle applied not only to judic~al proceedings bur also

- 19. Lord Coke in E&&u Vs. h d D e r Q (1613) 12

CO.Rep.114.

20. Lord Hewart in & V. Susseh (1924) 1 K B 256 (259).

to quasi judicial as well as administrative proceedings.21

Bias can be examined under three categories (1) pecuniary

bias (2) personal bias and (3) of f ic~al bias.

5.1.1. Pecuniary bias

Pecuniary bias, however slight, will vitiate the decision.

This is a case where the deciding authority has monlrory or

proprietary interest In the subject matter. The historical

example is the decision of the House of lords in Q b s V.

Canal Q.22 There the judgement of Lord

Cottonham in a case was set a s ~ d e since he held shares in the

respondent company. It was observed, "It is of importance that

Lhe maxim that no man is to be a judge in his own cause should

be held sacred".23 Griffith and Street rightly state that a

pecuniary Interest however slight, will disqualify even though it

is not proved that the decision is I n any way affected 24 In

Halsburys Laws of ~ n ~ l a n d 2 5 it is stated that "there IS a

presumption that any financial interest however small in the

21. J.Mahooatra V, Co. (1984) 4 SCC 103.

22. (1852) 3 H . L C. 759.

23. Ibid. This was reiterated in ho.nx Untted Brex'er- V. Bathlustlces, (1926) A.C.586.

24. Principles of Administrative Law (4th Edn. p 156)

25, 4th End. Vol.1 para 68.

matter in dispute disqualifies a person from adjudicating". In

-., V -26 the

Regional Transport Authority presided over by the Dlsirict

Collector, granted a permit to a co-operative soclety of which

the Collector was the president The Court set aside the order

on the ground that the order of the authority was contrary to the

principles of natural jusuce, In Jeeleebhov V .

W o r of T h m , 2 7 a 'ChiefJustice Gajendragadkar

reconstituted the Bench on objection being taken on behalf of

the interveners in Court on the pround that the Chief Justice.

who was a member of the Bench was also a member of the C o ~

Operative Society for which the disputed land had been

acquired In Annamalai V . -2fb one upha was

sitting as one of the members of Regional Transport Authority

issued a permit in his own favour. Later on he transferred the

permit in favour of his brother In law. This was held as b ~ a s

In J.Mahonarra and CQ., V. h t e of Qrissa28 some of the

members of the Committee set up for selecting books for

educational instlrutions were themselves authors whose books

were also to be considered for selection The Supreme Court

held that the possibility of bias cannot be ruled out. The Court

26. A . I . R . (1953) Mad. 709

27a. A. I .R. 1965 SC 1096.

27b. A.I.R. 1957 A P. 1572.

28. A. I .R. 1984 SC 1572.

of Appeal in B, V . -29 has held that the test of

pecuniary interest In the subject matter ujill not apply to

criminal cases. In this case the accused was convicted for

committing robbery in a bank in which the t r ~ a l judge was

having 1.650 shares. He disclosed the said fact in open Court.

It was contended by the accused that the trlal was vitiated.

Brooke. J observed that there are two types of cases of Interest.

There may be cases in the outcome of the case. In these cases

the Court applies very strictly the maxim that nobody may be a

judge in his own cause and the decisions which are made in

those circumstances are voidable because bias is conclusively

presumed. There may be cases In which there is no d ~ r e c t

pecuniary interest in the outcome of the case, but the

surrounding circumstances give rise to a reasonable suspicion

that justice is not being done because an adjudlcator has an

interest u h i c h falls short of being a direct pecuniary interest

5.1.2. Personal bias

Personal bias may arise owing to friendship, personal

animosity or near relationship But it is difficult to say when it

will vitiate the order. What is required is taking a decision

with partiality towards one side or hostility towards the other.30

The question whether the bias of a single member in a

decision making body would vitiate the decision of the body has

arisen in several cases. In one case3l it was held that where

decision was taken by a body of persons the knowledge of one

person of the facts of the charge would not invalidate the

disciplinary proceedings.32

Personal animosity will vitiate the order. Where an

enqulry was conducted by an Officer against whom the

delinquent employee had earlier glven evidence In a crlminal

proceeding was held incompetent to hold a discipl~nary

enquiry .33

In Andhra V.

-34 the decision of the M~nis te r to nationalise the

30. Schwartz Bernard, Administrative Law. Neu York (1976)

31. & V. -, .4.l .R. (1961) A.P.37.

32. 1 ' V . v , A 1.R (1970) Ker. 142 W s h n a w i t i c l s e d . the decision in Kraipak's case.

33. ' V . AirFrance. A.1.R (1963) S.C. w 34. A.I.R. (1965) S.C.1303.

Transport service was successfully attacked by the respondent

on the ground of personal animosity. In V . SratePf

-35 the appellant challenged a scheme of

nationalising the motor transport In a certain area. The main

contention was that the schemes were vitiated by bias. The

Court accepted the contention.

In another case, the Chairman of the Bench was friend of

the wife's family, who had instituted matr~rnonial proceedings

against her husband and the w ~ f e had told the husband that the

Cha~rman would decide the case in her favour. The order was

quashed by the Divisional ~ o u r t . 3 6 In V

X ~ r k n ~ n . 3 ~ a manager conducted an enquiry against a

Workman for the allegation that he had beaten the Manager. It

a a s held that the inquiry was vitiated.

In Srate of U . P . Vs. -38 a departmental

inquiry was held against A by B. As one of the wltness against

A turned, hostile, B left the enquiry, gave evidence against 4 ,

resumed to complete the enquiry and passed an order of

dismissal. The Supreme Court quashed the order of d~smissal

35. A. I .R. (1964)S.C.962.

36. ih& V. w. (1939) All. E.R.539

37. A.I.R. 1963 Sc 1719.

38. A.I.R. 1958 SC 86.

and held that "the rules of natural j u s t ~ c e were completely

discarded and all canons of fair play were grievously violated"

by B.

In SP.KaDoor V . ~ t a t e o f 9 , when the Departmental

Promotion Committee considered the confidential leports of the

candidates prepared by an Officer who himself was one of the

candidates for promotion, the selection was quashed. In

Baidvanath Ma- V . of ~ , 4 0 the Revieu

Committee recommended for the Premature retirement of a

Government Servant a t the age of 50 years. One of the

members of the Review Committee who recommended

premature retirement of the Appellant was appointed as the

Chairman of the Tribunal and confirmed the Order of premature

retirement. The Supreme Court held that the Order of the

Tribunal was vitiated since the member. "who had

administratively taken a decision against the Appellant.

considered the matter judicially as a Chairman of the Tribunal,

thereby he acted as a judge of his own c a u ~ e " . ~ l

Judge-Witness combination is another type of personal

bias. Where an enquiry offlcer stepped into the Witness box

and gave evidence against the respondent and then resumed hts

--- 39. A. I .R. 1981 SC 2181.

40. A. I .R. 1989 SC 2218.

41. Ibid at p.2222.

chair, it was held that he was most unsutted to conduct the

enquiry .42

5.1.3. Official Bias

This is a combination of 'minister~ai ' bias and

'departmental btas'. This i s also known as b ~ a s as to subject

matter The question of Offtcial bias arises where a policy

made public and later the same officer hears the objections

against policy.43 Here a conflict arises beween duty to act

ludtc~al ly and the duty to implement the policy. This type of

bias 1s not seriously viewed by the Court. According to Grlffith

and Street rarely only this blas will invalidate proceedings 44

Wade remarks that ministerial or departmental policy cannot be

regarded as a disqualifying bias.45

In V. A , P ~ . ~ . ~ o r ? o r a t l o n ? 6

the Supreme Court held that the hearing given by the Secretary

to Government was bad since he had taken part in forming the

42 Urtar P r a d e a V . Mohammed, A.I.R. (1958) S.C.86.

. . 43, m,CVi7w of Town and Country P l a u u g

44. Pldministrative law. 4th Edn. P .156.

45. Administrative Law. 1988 pp.489-93

46. A.I.R. (1959) S.C.308.

scheme, In the second -47 the hearing was given

by the Chief Minister. The Supreme Court repelled the

contention that the Minister was biased and hence d~squalified

from hearing.

In K r i s h n a ~ u s i - ~ V . SUE of ~ a r ! . a n a ~ 8

Private Operators of Motor Vehicle challenged the legaltty and

validity of the notif~catton issued by the Stare Government

conferring the powers of Deputy Superinte~. ' n t of Police on the

General Manager, Haryana roadways on the ground of bias.

The Supreme Court upheld the contention and quashed the

notificat~on. Venkataramiah. 1 observed that adm~nis t ra t~on

must be rooted In confidence and that confidence is destro)ed

when people begin to think that the Officer concerned 1s

biased.49

5.1.4. Tests of Bias:

The test of bias 1s based on the principle that justice

should not only be done but should seemingly be done. The rule

against bias operates on the basis of reasonableness by means of

reasonable suspicion of bias tesr50 and real

48. A.I.R. 1985 Sc 1651.

49. lbid at 1654.

50. Markose A.T. calls it 'objective' and 'subjective' op.cit . p.215.

115

likelihood of bias test.)]

The real test is ushether b ~ a s actually exists. Here

reasonableness plays a wtal role. Where the statements or

actions or position of an adjud~caror causes a reasonable person

lo think that there is a real posslbll~ty of bias on h ~ s part for or

against a party in a particular case, he is disqualified from

sitting as a j ~ d ~ e . 5 2 "His Lordship observes, "This article

would not welcome any incursion Into the rule that it is never

necessary to prove actual b i a s . . Nor would this article

encourage the adoption of a more sweeping test for bias than is

afforded by the reasonable suspicion rest, since this will

unwarrantably hinder the business of administratlon"53

H.F.Rawlings says thar " . . the conclusion of Francis Alexis

need be modified and supplemented . . . . it may be suggested that

Mr.Alexis over simplified when arguing that this publlc

confidence is best maintained by the rigorous application of the

"reasonable suspicion test'' . Lord Esher, M.R. even In 1894

stated that law required that an adjudicator could not

51. Jackson P. says, "There is in fact only one test" See Natural ((1973) p .31 .

52. Francis Alexis "Reasonableness in the Establ~shing of Bias" Pub. L . 1979 p 143

53 . Rawlin s H F "Iiatural Justlce - A test for the Nemo Judex k i l e " ; $ u ~ . L 1980, 122. H.KRawlin s says , that .... the conclus~on of F r a n c ~ s A l e x ~ s need %e mod~f ied

and supplemented.. . . ~t may be suggested that Mr.Alexis over simplified when arauing,that t h ~ s publ/c confidence is best maintained by tge, rlgorous appllcatlon of the

reasonable suspicion test

"reasonably be suspected of being b1ased".54 ~ o r d Hewart also

emphasised the reasonable suspicion test when he observed that

nothing should be done whlch created "even a suspicion" of

improper interference with justice.55

5.1.5 Real likelihood test.

Balckburn, B. held as early as 1866 that bias had not been

proved as there was no "real likelihood" of bias This shows

that no one has doubted Ihe existence of the real l~kelihood of

bias test. Lord Denn~ng m V

h . m n j 6 case said that a real likelihood of bias exists when a

reasonable man would think it likely or probable that an

adjudicator favoured one side unfairly. According to S A .

D e s m ~ t h a 'real likelihood' means at least substantla1 p o s s ~ b ~ l i t y

of bias.57 In Hakbuyk Laws of ~ n ~ l a n d 5 8 it is stated, "The

test o f bias is whether a reasonable Intelligent man, fully

apprised of all the circumstances, uould feel a serlous

apprehension of bias"

56 . (1969) 1 Q.B.577, C .A.

57. Judicial Review of Adm~nistratlve Action. 1980, p.262.

58 . Halbury's Laws of Lngaldn 4th Edn., Vo1.2 para 551. p.282.

In India the Supreme Court stated that the reasonable

apprehension of bias in the mind of the party is the test of bias.

It observed. "...the test is not whether in fact a bias has

affected the judgement; the test always is and must be whether a

litlgant could reasonably apprehend that a bias attributable to a

member of the tribunal might have operated against him in the

final dec is~on of the tribunal".59

But in the case of V. Union of 1ndia60 the

Supreme Court applied the real likelihood test. I t was observed.

"under those circumstances 11 is difficult to believe that he could

have been impartial. The real question is not whether he u a s

biased. It is difficult to prove the stare of mind of a person.

Therefore what we have to see I S whether there 1s reasonable

ground for believing that he was l ~ k e l y to have been biased. But

a mere suspicion of bias is not sufficient. There must be a

reasonable likelihood of bias".61

In India the attitude towards the test of bias is not clear.

But it is to be remembered that the test of a real likelihood of

bias must be based on the reasonable apprehensions of a

59 . Manak V , v ' A.I .R. (1957) S .C.425 429. H e m s s e d because the allegatiob of bias was found ro be waived.

60 A.I.R. (1970) S.C.150.

61. Ibid. 11.153.

reasonable man fully appr~sed of the facts. There must be

reasonable evidence to satisfy that there was a real likelihood of

bias. Vague suspic~ons of whimsical, capr~cious and

unreasonable people should not be made the standard to regulate

normal human conduct.62

5.2 OPPORTUNITY OF BEING HEARD

The second l ~ m b of natural justice is based on the larin

maxim ' w a l r e r a m o a r t e m ' . "Hear the other side" is the

essence of the principle 1 The authority must not hear one side

In the absence of the other2 or make a dec~sron without a

hcaring.3 Being one of the principles of natural justice, it was

made appl~cable even to administrative authority adjudicatrng

matter having civil consequences. In practice it is more

frequently invoked than the rule against bias 4 'No proposition

62. V. K.D.Bali A.I .R. 1988 - 2 . V MinisrerDf, (1935) 1 K.B.249. In

India see Dhakeshwarl V. V.., A.I.R. (1955) S.C.154.

3. V Worsboroueh U.D.C. (1962) 2 Q.B. 93.

can be more clearly establ~shed than that a man cannot incur the

loss of liberty or property for an offence by a judicial

proceeding untll he has had a fa11 opportunity o f answering the

case against him.5

Notice is the first limb of a proper hearing 6 Notice

should be definite.7 It should specify the authority i ssu~ng the

n o t i ~ e . ~ It should be "hollow and barren manifestation of

natural justice to say that as of right some one may be heard In

defence of himself but only against an unknown charge 9

Hence, the charge of grounds of the proposed action must be

s~ec i f led in the notice.10

The Courts i n s ~ s t that sufficient time should be glven to

the person against whom action is proposed to be taken to

prepare his defence. The Court has struck down a notlce w h ~ c h

stated that an enquir) would be held In the next mornlng 11 A

- - -- 5 Desmith, S .A Judic~al R e i ~ e w of Adm~rlistrative Action,

1980. p .158.

6 . Markose,A.T.Qpsit.p.219.

7 . Lakshml VFuota V., A.I .R. (1954) Cal 335.

8 . U t t a r V . S a t v a N a r a l n , A. I .R. (1970)S.C.1199.

9 . Lord Morris in klalhch V. -. (1971) 1 W.L.R. 1578, 1586.

10. V. , .

, A.I.R.

11. V A.I .R. 1972) S.C. 2128.

120

notice need not be rssued ~f the concerned party acquires

knowledge of the proceeding and appears before the authority.

But if the statute specifically provides for a notice the

proceeding may be struck down for failure to issue the notice.

The notice must be clear, specific and unambiguous and

the charges should not be vague and uncertain.12 In R V

v of ~a&i&,l3 Dr.Bentley was deprived of his

degrees by the Cambridge University on account of his alleged

misconduct without giving any notice or opportunity of hearing.

The Court of King's Bench declared the decision as null and

void. According to Fortescue. 1 the first hearing in human

history was given in the Garden of Eden. His Lordship

observed "Even God himself did not pass sentence upon Adam,

before he was called upon to make his defence!' Adam, says

God, "Where are thou?" Hast thou not earen of the tree,

whereof I commanded there that thou should not eat.14

If the right to be heard is to be a reality, the person

proceeded agalnst must also be given the copies of documents

13. (1723) 1 Str. 757 8 Mod 143. 93 ER 698. Thakker ~dminis t ra t rve Law. (1592) Edn. at p . l g o t e d by

14. Wade: Administrative Law Great Britain English Language Book Society, i 9 8 8 , pp.496-50' desmlth: Judicial Revleu! of Administrative Action, 1980. pp.158- 59 , and also A.I.R.1978 SC 597.

and other materials so that he may be well aware of the case he

has to meet. Where a person proceeded against, asked for a

copy of a document, it was held that he would have at least been

told that he had already been given the summary of i t .15

The question whether hearing to be effectwe, a personal

hearing to be given or only an opportunity to file an explanation

is sufficient deserves attention. Hearing does not ordinarily

include a personal hearing unless the statute expressly or

~mpl iedly indtcates so.16 The Supreme Court spoke in favour

of personal hearing in Travancore V. V.. of 7

There the Court expressed the view that if personal hearing was

given in cases involving complex and difficult questions, it

would conduce to better administration and more satisfactory

disposal of the grievances of citizens.

11 seems that the need of personal hearlng in all

proceedings having civil consequences is yet to be appreciated

by the Courts of the land. Whether or not there 1s prov~sion In

a statute for granting a personal hearing, it should not be

refused to a party when he makes a specific request for such a

hearing.

16 , pp&mdg V. The UniveL$,iSv of P U , A . I . R .

17. A . I . R . (1971) S . C . 862.

Personal hearing may be of two types. One, a hearing

given to the party or his agent or advocate and two, a

fullfledged enqulry with right to adduce evidence. It may be

generally said that all cases in w h ~ c h determlnation of questions

of fact is ~nvolved , letting in oral ev~dence by party becomes

necessary. When a determination had to be arrived at on

questions of fact, the determlnation had to be made only upon

oral evidence and after giving opportunity to the party to test

the veracity of the witnesses by way of cross-examination.18 In

-,,Drum I&,JcmCo.,V9 the

Court repelled the contention that no oral hearing was given on

the ground that they had ample opportunity to put their case and

when hearing was refused no protest was made.

i f any action is taken against a party without giving an

opportunity of being heard the Court will strike down the action

as ~nval ld . In F k b a V -20 the Government

passed an order without glving any notice or hearing. The

Privy council observed: " T h ~ s order was issued without notlce

to Ihe appellant and without giving either the Collector or the

appellant an opportunity of being heard upon the matte;:21

-- 18. A.I.R. (1967) S.C.361 the Court repelled the contention

that no oral hearing was eiven on the ground that they had ample opportunity i o putihelr case arid when hearing was refused no protest was made

19. AIR 1967 SC 361. 20. (1899) I.L.R. 22 Mad. 270 21. W a t 2 8 1 .

In 7 . . V. -22 certain

allegations of nepotism'were ralsed a g a i n ~ t the Respondent and

an enquiry was ordered to be conducted by one Anderson. But

he did not complete the enquiry. Hence, another officer was

appointed to conduct the enquiry after sometime. He completed

the enquiry and recommended that the Respondent should be

terminated from service. The Respondent argued that he was

not heard before the proposed action to be taken. The Privy

Council held that "The Respondent has not been given the

opportunity to which he is entitled thereunder and the purported

removal of the servant. . . . was void and inoperativd:23

In-v- . . 24 the

Calcutta High Court formulated the principles where a Court

can interfere with the remedy of declaration. They are: (1) that

such domestic authorities have acted under bias or In bad faith

and malafide, (2) that such authorities have violated the

principles of natural justice in the proceedings and conclusions

before it . . .25

22. A.I.R. (1948) P .C.121

23. Ibid. at 127: See also Andhra V . h L & k h U 3 Ljikshmi. A.I .R. (1951) Mad. 870

24. A. I .R. (1961) Ca1.31

25. Ibid. at 34. Here ~t was held after scrutinising the records that the Respondent was glven a fair hearlng.

In English law the decision of the House of Lords in

hi&% v . BaI!&hz6 marked the turning point In the province of

natural justice. The Appellant was dismissed from servlce by

the watch committee without giving him an opportunity to

present his case. The majority held that his dismissal u'as null

and void. Lord Reid observed, " ... a decision given without

regard to the principles of natural justice is void. The body

with the power to decide cannot lawfully proceed to make a

decision until it has afforded to the person affected a proper

opportunity to state his casi127

The decision in hi&% V. was accepted by the

Indian Supren~e Court in Associared v . Shama28

Gajendragadkar, C . J . observed "lt would thus be seen that the

area where the principles of natural justice have to be followed

and judicial approach has to be adapted, has become wtder . . . . "

In ~ r a i ~ a k s 2 9 case, the Court rejected the argument that natural

justice was not applicable to administrative function30 and held

that it was against all canons of justice to make a man judge in

his own cause. "For many years the duty to observe the rules of

26. (1963) 2 All F.R. 66.

27. Ibid. at 81.

28. A.I.R. (1965) S.C.1595.

29. A.I.R. (1970) S.C.150.

30. Wraith and Hutchesson ' ' '

London, George Allen & ~ ' ~ w i M d ; ~ i ; " p . 3 T 9 ? '

natural justice was confused with a duty to act judicially". It

was observed, " . . . . if the purpose of the rules of natural justice

was to prevent miscarriage of justice one failed to see why those

rules should be made in applicable to administrative

enquiries" 31 In -32 case, the Court observed

that principles of natural justice applied also to administrative

inquiries h a v ~ n g civil consequences. Thus the Court insisted

that there should be 'fairness ' in administrative actlons having

civil ~ o n s e ~ u e n c e s . 3 3 Foulks observes, " . . . w e have now

arrived at the position that in seeking to argue that an

administrative authority should have observed the rules of

natural justice, it is not necessary to prove that the body was

acting quasi-judicially.. . . we may now speak of the duty to aci

fairly rather than in accordance with the rules of natural

justice".34 An order involving c ~ v i l consequences must be made

cons~stently with the rules of natural justice. In ~U~&LA@

M V -35 the const~tution Bench

held that C i v i l Consequences" covers in fraction and not

merely property or personal right but of civil l~ber t ies , material

deprivations and non-pecuniary damages. In its comprehensive

31 . Ihid. at 154.

32. A. I .R. (1978) S.C.597

3 3 Foulks Principles of Administrative Law. London, Butterworths. 1976. (op.cit) 158

34. &. p.158.

35 . (1978) I SCC 405.

connotation everything that affects a citizen in his civil life

inflicts a civil consequence. The Black's Law dictionary36

defines civil rights as such as belong to every citizen of the

State or Count ry . . . .. they include rights capable of being

enforced redressed in civil action. In &te of v .

E b g u i L U 3 7 the Supreme Court held that even an

administrative order which involves civil consequences must be

made consistently with the rules of natural j u s t ~ c e . Appl~cation

of the principles of natural justice that no man should be

condemned unheard intends to prevent the authority from actlng

arbitrarily affecting the rights of the concerned persons. No

decision must be taken which will affect the right of any person

without first being informed of the case and g iv~ng an

opportunity of putting forward the case. A n order involving

civil consequences must be made consistently with the rules of

natural justice. 'Civil consequences covers infraction of not

merely property or personal r ~ g h t but of civil liberties, material

depr~vations, and non-pecuniary damages.38 Rules of natural

justice a re foundational and fundamental concepts and law is

now well settled that the principles of natural justice are part of

the legal and judicial procedures and are also applicable to the

administrative bodies in its decision making process h a v ~ n g

- 36. 4th Edn. p.1487.

37. A.I.R. 1967 Sc 1269.

38. D.K.Yadav V . Y.M.A.lndustrlesLtd., (1993) 3 SCC 259.

civil consequences.39 In this case the principal of a Higher

Secondary School was suspended and he objected the

participation of a particular member in the enquiry committee.

A hearing will normally be an oral hearing." de smith41

also oplnes that In the absence of clear statutory guidance on the

matter, one who is entltled to the protection of the audi alteram

partem rule is now prima facie entitled to put his case orally. Ir

is also necessary to give oral hearing when technical questions

are involved. In the absence of statutory requirements about

oral hearing, Courts will have to decide the matter takrng into

consideration the facts and crrcumstances of the case The

principles of natural justrce are flexible and whether they were

observed in a given case or not depends upon the facts and

circumsrances of each case. The test 1s that the adjudicaring

authority must be impartial. Fair hearing must be given to the

person concerned. The object of fair hearing is to ensure that

justice is done that there is no failure of justice and that every

person whose r ~ g h t s are going to be affected by the proposed

action gets a fair hearing.42

-- 39. Rattanvs.ManaelneCommltree, -

(Co-Education) (1993) 4 SCC 10-

01 and 0-

40. Wade. H . W . R . Administrative Law. Great Britian, English Language Book Society, 1988, p 543.

41. Judicial Review of Administrative Action 1980 p.201.

42. B.P.Jeevan R e d d . J , in V . S.K.Sharma ( A . I . ~ . 1996 SC 1669) a t 1682.

5.2.1 Pre-Decisional a n d Post-Decisional Hearing

Can the absence of a hearing before a decision is made be

adequately compensated for by a hearing ex-post-facto. A prior

hearing may be better than a subsequent hearing, but a

subsequent hearing is better than no hearlng at all, and in some

cases the courts have held that statutory prov~sion for an

adm~nistrative appeal or even full judic~al review on the merits

are sufficient to negative the existence of any 1mp11ed duty to

hear before the original decislon is made. The approach may be

acceptable where the original decision does not cause serious

detriment to the person affected, or where there is also a

paramount need for prompt action, or where it IS lmpracticabie

to afford antecedent hearing.43 In &&g v J&dd!&,44 the

Appellant C h ~ e f Constable was dismissed without norlce and

without enquiry. He was tried and acquitted on a Criminal

Charge of conspiracy to obstruct the course of justice Two

other Police Constables who were tried along wlth him, were

convicted. While acquitting the Appellant, the learned judge

commented adversely at more than one place upon the

leadership qualit~es of the Chief Constable suggesting that he

was found wanting in that respect. Thereupon, the Brlghton

Watch Committee, without givlng any notice or hearing to him

dismissed him from service. The Violation was thus of a

43, de Smith. Judicial Review of Administratibe Action 1980 at 193.

fundamental nature. It was a case o f total Violation of the

principle of natural justice. There could not be a greater

violation of natural justice than that. Audi alteram Parterm is a

highly effective rule which ensure that an author~ty arrives at a

just decision and it is calculated to act as a healthy check on the

abuse or misuse of power by the authority. In

W V . Ynwn of Indh,45 the Pe t i t ioners passport was

impounded by the Government of India in "Public Interest".

She was not heard before taking the Impugned action. She

challenged the validity of the action. The Governments'

contention was that Application of the Audi Alteram Partem rule

would have frustrated the very purpose of impounding the

passport. Eventhough the Supreme Court negatived the

argument, accepted the doct r~ne of post-decisional h e a r ~ n g in

exceptional cases. The Supreme Court held that where In an

emergent situat~on, requiring ~mmediate actlon, it 1s not

practicable to give prior notice or hearing, the preliminary

action should be soon followed by a full remedial hearing In

Charen v , -46 (Bhopal Gas Disaster

Case), the Supreme Court came to the conclus~on that prlor to

settlement of claims before the Court, notices %ere requ~red to

be given to the victims and pre-decis~onal hearing was required

to be afforded and even though post decisional hearing was not

45. A. I .R. 1978 SC 597

46. A.I.R. 1990 SC 1480.

sufficient, in the peculiar facts and clrcumstances of the case,

the Supreme Court did not quash and set aside the settlement.

Mukherji. C.J . observed that "though settlement without notrce

is not qulte proper, on the materials so far abaiiable, we are of

the opinion that justice has been done to the victims bur justrce

has not appeared to have been done. It is true that not giving

notice, was not proper because principles of natural justice are

fundamental in the constitutional set up of this country. No man

or no man 's right should be affected wrthout an opportunity to

ientrlate hrs views. We are also conscious that justice I S a

Psychological yearning, in which men seek acceptance of their

vreu point by having an opportunity of vindication of their vrew

point before the forum or the authority enjorned or obliged to

rake a decision affecting then rrght. Though entering Into a

settlement without the required notice is wrong, in the facts and

circumstances of the case, notice should be given n o u , would

not result in doing justice In the situatiod:47

In Swaderhi v. -48 an order

taking over the management of a company by the Government

without prlor notlce or hearing was held to be bad and contrary

to law. Speaking for the majority Sarkaria. I , observed that

"where the civil consequences of the administrative action are

47. Ibid.

48. (1981) ISCC 664.

grave and its effect is highly prejudicial to the rights and

interests of the person affected and there is nothing in the

language and the scheme of the statute which unequivocally

excludes a fair pre-decisional hearing and the post-decisional

hearing provided therein is not a real remedial hearing equitable

to a full r ~ g h t of appeal, the Court should be loath to infer a

legislative Intent to exclude even a minimal fair hearing at the

pre-decisional stage merely on ground of urgency.49

In Libertv 011 M~lh . . v. UUXI of hdu50 an order of

investigation was challenged on the ground of noncompliance

with the principles of natural justice The Supreme Court

rejected the contention and held thar "Procedural f a ~ r n e s s

embodying natural justice is to be implied whenever action is

taken affecting the rights of the parties. It may be that the

opportunirj to be heard may not be pre-decisional, it may

necessarily have to be post-decisional where the danger to be

averted or the act to be prevented is mmlnent or where the

action to be taken can brook no delay. I f an area is devastated

by flood, one cannot wait to issue show cause notices for

requisition vehicles to evacuate population. If there is an out

break of an epidemic, we presume one does not have to issue

show cause notices to requisition beds in hospitals, public or

49. Ibid at p.680.

50. (1984) 3 SCC 465.

private. In such situation, it may be enough to issue post-

decisional notices providing for an opportunity'' 511n SheDhard v . Unionof certain employees of Private Banks were

excluded from employment in the nationalised banks, when

certain banks were ordered to be amalgamated with some

nationalised banks. Before their services were terminated they

were not heard. The Supreme Court rejected the proposal for a

post-decisional hearing. In v -,53 hearing

was not given to the employees of a Go\'ernment Company when

a circular was issued altering the terms and conditions of its

employees. After issuing the circular an opportunity was given

to the employees with regard to the alteration. The Supreme

Court held that the post decisional heartng does not subserve the

rules of natural justice. The authority who embarks upon a

post-decisional heartng will normally proceed with a closed

mind and there ts hardly any chance of gettlng a proper

consideration of the representation at such a post-decisional

opportunity .54

Post-decisional hearing is a technique adopted for

maintaining a balance between admin~strative efficient) and

fairness. The object of this technique is to keep balance

- 51. lbid at p.486.

52. A.I.R. 1988 SC 686.

53. A. I .R. 1989 SC 568.

54. Ibid at 572.

between administrative necessity, speedy justlce and fairness.

Chief Justice P.N.Bhagavathy stated his opinion with regard to

post decisional hearing.55 According to Bhagavathy C.J . , the

Supreme Court decisions in Mohlnder V. . . ~ m m m ~ n a 5 6 and M a & a ~ a & j 5 7 cases were

misundersrood. It is clear law that if prior hearing is requtred

to be given as part of the rule of natural justice, fallure to do so

would invalidate the action. In such cases post-decisional

hearing will not save the action. But post decisional hearing

will be sufficient where prior hearing ail1 defeat the purpose

and object of the Act. In O.N.G.C. v .

-,58 the Supreme Court asked

0 . N G.C. to hear the association and to recons~der the dec is~on

eventhough the decision was taken without hearing the aggrieved

party

5.3 Reasoned Decision Or Speaking Orders :

Till recently, it was considered that the requirement to

give reasons was not part of the princtples of narural justice.

5 5 . Foreword to 1.P.Masseys' Book on Administratiie Law Lucknow, Eastern Book Company, (4th Edn 1995)

56. A.I.R. 1978 SC 581.

57 . A.I.R. 1978 SC 597.

58. A. I .R. 1990 SC 1851

But the Franks Committee59 insisted that the authority must

give reasons for its decisions This suggestions was accepted

and provided in S .12 of the Tribunals and Enquiries Act. 1958

In U.S .A. . S.8(B) of the Administrarive Procedure Act provides

that the decisions of Administrative Authorities must be

followed with findings, reasons, laws etc.

In India there is no general statutory provision which

requires the authority to give reasons. But the Courts have

enrrusted the duty on the administrative authorities to give

reasons. When a statute imposes the requirement of glving

reasons it is considered to be mandatory. Failure will be fatal

In Maneka V , Bhagavathi 1, observed

that giving of reasons is a healthy check agalnst abuse or misuse

of power.

In S.N.Mukherlee V . U o f 6 l the Supreme

Court observed that except in cases where it is exempted, an

administrative authority exercising judicial or quasi judicial

functions must record reasons for its decision. If reasons are

given the appellate Court nould be able to exercise its

jurisdiction effectively. The Court observed that giving reasons

59 The , Committee on Administrative Tribunals and Enquiries, 1957

60. A.I.R. 1978 SC 597.

61. A. I .R. 1990 SC 1984.

135

would (1) guarantee consideration by the authority; (2)

introduce clarity in the decisions, (3) mlnimise chances of

arbitrariness in decision making. But it was observed that

elaborate reasons just like in the case of Court need not be

given. Another advantage o f giving reasons is that, the party

can exercise effectively the r ~ g h t of appeal. I f no reason is

given, the party will not be able to exerclse the right

effectively. Moreover reasons will help the part) to know why

such a decision was taken. The Court will not be able to know

the mind of the authority if reasons are not given This IS the

most valuable safeguard against any arbitrar) exercise of power

by the adjudicating authority. The reasons recorded b) such

authority will be judicially scrutinised, and if the Courts find

that the reasons recorded by such authority were irrelevant or

extraneous, incorrect, or non-existent, the order passed by the

authority may be set aside.

In E2dfkM V. U n i s t e r of & ~ & u L U u 6 2 the Minister

gave reasons for refusing to refer the complaint to the

Committee and gave detailed reasons for his refusal. It was

admitted that the question of referring the complaint to a

committee was within his discretion. When his order was

challenged, it was argued that he was not bound to give reasons

and if he had not done so, his decision could not have been

62. (1968) I ALL E.R. 694.

questioned and his giving of reasons could not put him in a

worse position. The House of Lords rejected this argument and

held that the Ministers' decision could have been questioned

even if he had not given reasons. It is submitted that the above

view is correct.

According to de smith,63 there 1s no general rule of

English law that reasons must be given for administrative or

even judicial decisions. In V. . .

~ 6 4 Lord Denniug said, giving of reasons is one of the

fundamentals of good administration. The modern stare is a

welfare state, and as such the Governmental functions have

Increased. Administrative Tribunals and other execuuve

authorities have come into existence. They are armed with wide

discretionary powers and so there are all poss ib i i~ t~es of abuse

of power by them. The condition to record reasons introduces

clarity and excludes arbitrariness and sarisfles the party

concerned against whom the order is passed. In &lXE

E n g l e V . -65 the Supreme Court held that

the rule requiring reasons to be recorded by quasi-judicial

authorities in support of the orders passed by them is a basic

principle of natural justice. If Courts of law are to be replaced

63. Judicial Review of Administratrve Action (1980) P.148.

64. A.I.R. 1976 SC 1785.

65. A . I . R . 1976 SC 1785.

by administrative authorities and tribunals, as indeed, in some

kinds of cases, with the proliferation of Administrative L a u .

they may have to be replaced. It is essential that administrative

authorities and tribunals should accord fair and proper hearing

to the persons sought ro be affected by their orders and gi5.e

sufficiently clear and explicit reasons in support of the orders

made by them. Then alone administrarive author~ties and

tribunals exercis~ng quasi judicial function will be able to justify

their existence and carry credibility with the people by insp~ring

confidence In the adjudicatory process. The rule requiring

reasons to be given in support of an order is like the principle of

audi alteram partem, a basic principle of natural justice which

must inform every quasi judicial process and this rule must be

observed in its proper s p ~ r ~ t and mere pretense of compliance

with it would not satisfy the requirement of law.66 I f the order

is not a speaking order, always a declaration will lie.

5.4 Institutional Decision:

The administrative authority has to perform a lot of

functions. So an officer may need the help of some

subordinates to take a decision. Such a dec is~on tn which the

department is involved is called institutional decision, In

English law this is expressed in the term 'one who decides must

hear ' . This creates two problems. It may not be possible to

know who has taken the decision. Secondly, one person may

hear, another may decide.

In England this problem was ralsed before the House of

Lords in the case of Local V , u . 6 7 A

public enquiry had been held on an appeal ro the Local

Government Board by the owner of a house agalnst which the

Hampsread Borough Council had made a closing order on the

ground that it was unfit for human habitation. The owner

complained to the Court that the Board had dismissed his appeal

without a fair hearing because he was not allowed to appear

before the officer who made the decision or to see the report of

the inspector who held the Inquiry. The House of Lords

rejected the contention that it amounted to violation of natural

justice o n the ground that administrative aurhor~t) IS not

expected to exercise their functions like a Court Thls still

remain the law in England. The Arlidge case is a turning polnt,

In which the law failed to keep abreast of the standard of

fairness which public oplnion demanded, rightly as ~t turned

out, in the procedure of Government Deparrments. The lau

was, indeed, destined, to fall still further behind before It

returned to its old course in h i g . ~ V , P&lxin 68 The theory

that one who decides must hear is recogn~sed for the reason that

--- 67. (1915) AC 120.

68. Prof.Wade. Principles of Administrative Law

1 3 9

bias and ignorance alike preclude fair judgement upon the merits

of the case. In Union ofIndia ~ . , 6 9 an employee

was removed from service without a personal hearing. He filed

an appeal and was rejected. Afterwards he filed a Writ Petition

against the order rejecting appeal. It was allowed wlth a

direction to afford personal hearlng. But the employee was not

heard by the authority who decide the appeal. The Kerala High

Court held that 'One who decides must hear ' rule is not

followed and hence violative of principles of natural j u s t ~ c e . ~ o

In MQK&U v. U n i t e d 7 1 the Supreme Court of

United States Invalidated a pr~ce-fixing order of Secretary of

Agrtculture merely on the ground that the Secretary himself had

not personally heard or read any of the evidence or considered

the arguments submitted hut had declded the matter solely on

the advice of his officials in consultations at which the

objec t~ons were not present. Chlef Justice Hughes rejected the

very essence of administrative practice by refusing to allow that

'one official may examine evidence and another official who has

not considered the evidence may make the findings and order '

~ . ~ . ~ a r n e r ' i Z says in the outcome the final decision process

- -- 69. A. I .R. 1996 Lah.IC 774.

70. Ibld a t 777.

71. (1936) 298 M.S.468.

72. Garner J.F. Administrative Law, (5th Edn, London. Butterworths).

140

rests in the same hands as it does in England, and in most

corresponding cases the result may prove similar in both

countries, but at least in U . S . A there is a greater appearance of

iustice.

If an administrator has to carry on his multifarious

functions effecttvely it becomes essential for him to take the

assistance of subordinates within his department A decision in

such a case is called institutional because the decision as a

whole is that of the concerned department as an administrative

entity rather than the personal decision of any designated officer

individually. An institutional decision gives rtse to t u o main

problems. First, the authoriship of such a decision may not be

known as it is reached by several offlcers in the concerned

department. Secondly, there may be division in the decision

making process, while one person may hear another may decide

Prof.M.P.Jain and S . ~ . ~ a i n 7 3 say that there are two notable

drawbacks in the institutional decision. Firstly the deciding

officer is unable to watch the demeanour of a witness and to

make up his own mind as to the credibility of the witness.

Secondly the party is unable to put his arguments before the

person who really counts and to persuade him directly to accept

his view point. These drau,backs in institutional decisions

necessarily place the rule "One who decides must bear" on a

73. Principles of Administrative Law, 14th Edn

i41

higher standard of procedural fairness than what obtains in the

United Kingdom.

In the United States, the requirement of a fair hearing in

Federal matters is stated with some particularity In the

Administrative Procedure Act, 1946. Section 7(c) of the

Administrative Procedure Act. 1946 prov~des that every party

shall have the right ta present his case or defense by oral or

documentary evidence, to submit rebuttal evidence, and to

conduct such cross examination as may be required for a full

and true disclosure of the facts. In the Administrative

Procedure Act, 1946 an attempt has been made, in federal

matters, to separate physically the process of adjudication on

objection or representation made against some proposed policy,

from the process of taking the policy decision itself. Where an

objector or other interested party is entitled to a hearlng, that

hearing must he held before a hearing offlcer' of the

administrative agency concerned, u h o must be an individual

different from the official responsible for formulating the policy

appealed against. The hearing officer must himself propound a

draft decision on the results of the hearing, uhich must be

notified to the parties and the final policy dec is~on must take

this draft into consideration. All contours of hearing which are

considered to be the necessary limbs of fair hearlng are

contained in the above provision so as to guarantee a fair

hearing which is statutorily guaranteed in Contrast to the norms

of hearlng existing in U.K. and India However it must be

remembered that the greater part of decision - making In the

United States i s by officials working within a departmental

system.

In Maharashtra Board of u r v and

Secondarv VV. K.S.Gandhi74 the Supreme Court held

that [he applicability of the principles of natural justice is not a

rule of thumb or straight jacket formula as an abstract

proposition of law. It depends on the facts of the case, nature

of the enquiry and the effect of the orderldec~sion on the r ~ g h t s

of the person and attendant circumstances, In GuU&glh

Naeesivara V . A.P.S.R.T C-75 the releiant Act

and Rules framed thereunder imposed a duty on the State

Government to give a personal h e a r ~ n g . The procedure

prescribed by the rules imposed a duty on the Secietar) to hear

and the Chief Minister to decide. Subba Rao. J (as he then &as)

held that this divided responsibility is destructive of the concept

of judicial hearing. If one person hears and another decides.

then personal hearlng becomes an empty formality. The

decision was criticised by several jurists. This declsion is

considered to be against Governmental practice. If this rule is

made compulsory, administrative authorities will find it difficult

to function properly. The authority who is taking the decision

must be given freedom to take help from his subordinates. But

at the same time he himself must appraise the evidence and

come to a decision. If he is entrustlug everything except taking

of decision to his subordinates then it will amount to violation

of the concept of fair hearing. It is submitted that the starus of

the rule "one \iho dec~des must hear'' remains uncertain in

India.

5 . 5 Violation Of Natura l Justice, Void O r Voidable.

In V. M&4i!~~~ it was pointed out that the

i i o l a t ~ o n of the tules of natural justice by an administrative

authority makes the decision void and not voidable Since the

decision of Ridge's case a controversy has arisen as to the

nature of an order in violation of the principles of natural

justice. A \oidable order is an order which is legal and valid

unless it is set astde by a competent court at the instance of an

aggrieved party. On the other hand, a void order 1s not an

order in the eye of law It can be ignored, disregarded.

disobeyed or impeached in any proceeding before any Court or

tribunal. It is a still-born order, a nullity and voidabinitio.77

In -ties CQ-, V . La&3.~78 the English

76. (1964) AC 30.

77 Thakker, C.K. Administratlve Law (Lucknow, Eastrrn Book Company), (1992) at 216.

78. (1968) 3 All. B.R.304.

Court took the vlew that non-compliance of the principles of

natural justice does not vitiate the order and rhe order cannot be

set aside at the instance of an aggrieved party.

In India the Courts have taken the view that whenever

there 1s violation of any rule of natural justice, the order is null

and void In Board of . -79 a student

who was charged wlth malpractice in an examinat~on, was not

glven a reasonable and falr opportunity to be heard in defence.

The order debarring him was quashed stating as violat~ve of the

principles of natural justice, In Nawahkhan V. StafeQf

-80 an order of externment was passed against the

Petitioner on September, 5 , 1967 under the Bombay Pollce Act,

1951. In contravention of the said order, the Petitloner entered

the forbidden area on September 17 , Q67 and was therefore

prosecuted for the same. During the pendency of the c r~mlnal

case, the order of externment was quashed by the Hlgh Court

under Article 226 of the Constitution on July, 16. 1968. The

trial Court acquitted the Petitioner but the High Court convicted

hlm, because according to the High Court, contra\entlon of the

externment order took place when the Order was still operative

and was not quashed by the High Court. Reversing the decision

79. A. I .R. (1962) SC 1110.

80. A . I . R . (1974) SC 1471

of the High Court, the Supreme Court held that as the

externment order was held to be illegal and unconstitutional ~t

was of no effect and the Petitioner was never guilty of flouting

an order which never legally existed. Krlshna Iyer. 1, rightly

observed that nullity is the consequence of unconstitut~onallty

and so without going into the larger issue and ~ t s plural

divisions, we may roundly conclude that the order of an

administrative authority charged with the duty of complying

with natural justice in the exercise of power before restricting

the fundamental right of a citlzen is void ab initio and of no

legal efficacy. An order is null and void if the statute clothlng

the administrative tribunal with power conditions it w ~ t h the

obligation to hear, expressly or by implication.81

In Al V . Secretarv of State for the KQme

L Q u I m d 2 on the ground of overstaying In United Kingdom,

the Appellant was given a notice proposing to deport him. The

notice was, sent by the Appellant's solicitors in the Appellant's

old address. The Appellant did not receive ~ t . The solicitors

f~nding no response from the Appellant took no steps In the

matter and the Appeal was dismissed. The solicitors agaln

wrote to the Appellant but on the old address again. When

sought to be deported, the Appellant applied for judicial revlew

81. Ibid at pp.1478-89

82. (1990) 2 AC 876.

of the deportation order on the ground of absence of notice to

him. The High Court and the Court of Appeal upheld the plea

holding that notwithstanding absence of fault by the Tribunal,

there had been a breach of the pr inc~ple of audi alteram partem,

which constituted a fundamental flaw in the decis~on-makrng

process and that since the fault lay entirely with the Appellants'

solicitors, there was a clear case for quashing the Tribunal 's

decision. On Appeal to the House of Lords the decision of the

High Court and Court of Appeal was reversed. Lord Bridge. J

observed that a party to the dispute who has lost the opportuniry

to have his case heard through the default of his o n n advisers to

whom he has entrusted the conduct of the dispute on his behalf

cannot complain that he has been the victim of the procedural

impropriety or that natural justice have been denied to hlm. In

otherwords, the House of Lords was of the opinion that natural

justice merely imposed standards of procedural fairness on the

decision-making authority and that natural justice does not

demand that the person affected should actually receive a fair

hearing.

Prof.Wade83 says if natural justice IS violated at the first

stage, the right of appeal is not so much a true right of Appeal

as a corrected initial hearing instead of fair t r ~ a l followed by

appeal, the procedure is reduced to unfatr trial followed by fa11

83. Administrative Law, 1988 p .550

trial. The Supreme Court of India applied the same pr~ncip le in

State o f . V . . 8 4 The Supreme Court held

that if an order passed by an inferior Court or tribunal of first

instance is null and void ' the vice' cannot be obliterated or

cured on appeal or revision, it does not make an) difference.85

Prof.Wade is of the vlew that both law and justice demand that

violallon of the rules of natural justice should ha \e the effect of

rendering the administrative decision void.86

Consistency lacks in judic~al decision and jur i s t~c writings

regarding the application of the terms 'void' or 'voidable' to

qualify administrative action. The uncertainty reaches a climax

over the rules of the natural justice. According to

~ r . ~ u b i n s t i n 8 7 the dlstinct~on between void and voidable acts

depends on the method b) which it is challenged. Voidable acts

are those that can be invalidated in a direct attack, say for

instance in an appeal or by certiorari On the other hand, a

void act is a nullity and may be challenged even in a collateral

proceedings.

84. A . I . R . (1958) SC 86.

85. (1967) 83 1 . Q . R 499, (1968) 84 L Q.R.95

86. Wade HWR. "Unlawful Administrative Action Void or Voidable". 83 LQR. 1967, 84 LQR. 1968, 95.

87. Rubinstein, Jurisdiction and Illegality. Oxford, Ciarenden Press, (1965) p . 5 .

The unnecessary restriction put on the scope of

declaratory relief in English law [hat 11 cannot be effectively

used in the case of an administrative act vitiated by error of law

apparent on the face of the record88 is said to follow from the

decision in Eunran V . Kinistrv of PePrinns.89 The facts of the

decision show that the Plaint~ffs who were denied unemployment

benefit under the National Insurance Act, 1946 prayed for a

declaration that the decision of the commissioner was ~ n v a l ~ d .

The Court held that the Plaintiffs could have approached the

High Court for a writ of certiorari within a period of six

months.90 Sellers. L .J . observed. "That question, I

approached, would have been the precise issue if proceedings

had been taken by way of certiorari and a decision could have

been obtained in such proceedings, which if favourable to the

Plaintiffs, would have resulted in the Commissioner's decision

being quashed and of no effect". The decision of the

Commissioner had been made final by the statute Sellers. L J .

was of the vlew that a declaration as prayed by the Plaintiff

would have the effect of "two contrary decisions between the

same parries on the same issues obtained by different

procedures",91 one that of the tribunal and the other by the

Court. Another reason pointed out by the learned Judge in

- 88. Wade HWR. print-dministrative Law at 508.

89. (1964) 1 All. E . R 448.

90. Ibid at 451.

91. Ibid a t 455.

refusing the remedy was that "it can give no effective remedy

direct or indirect to the Plaintiffs who make a monetary

claird!92 The decision of the House of Lords in

V. -93 also included a

monetary claim. If a Court can declare a decision as invalid for

jurisdictional grounds it can also do so on the ground of error of

law. It has to be said that such contingency can arlse only if the

Court usurps the jurisdiction vested in the Tribunal to d e c ~ d e the

mater on merits. It has been observed, "All the Kings horses

and all the King's men marched upto the Court of Appeal twice

and marched down from there without really decid~ng whether

the National Insurance Commissioners decision was legally

acceptable or noi:94 The practical difficulty in issulng a

declarat~on that an administrative act is invalid for error of law

is not clear from the decision. So far as the scope of the

declaratory relief in India is concerned there seems to be no

such restriction. Pr0f .A.T Markose has observed "F~nal ly

generally speaking the principles upon which a declarar~on is

given in this sphere are the same as those upon which

prerogative writs are issued!95 In I n d ~ a the only restriction

92. Ibid.

93. (1969) All. ER 208

94. Markose A.T. "certiorari cer t i f~ed" 16 N.1.L Q 339 369-70 (1965) quoted by S.Go akumaran Nair, " V ~ o l a t ~ o i of Natural Justice, void or volgable" AC L . R . Vol 3 No.1 (1979).

95. Markose A.T. Judicial Control of Administrative Action in India (1956) pp.649, 659.

150

seems to be that the Court cannot usurp the jurisdiction of the

tribunal to redecide the matter. In Dhulabhai V.

~ r a d s s h 9 6 A.I .R. (1969) SC 78 at 90 Hidayatullah. C.J.

observed, "Question of the correctness of the assessment apart

from its constitutionality are for the dec~s ion of the auihorit~es

and a civil suit does not l ie if the orders of the aurhor~ries are

declared to be final or if there is an express prohibition in the

particular Act"

5.6 Exclusion Of Natura l Justice:

The principles of natural justlce have taken deep root in

the judicial conscience of our people. They are now considered

so fundamental as to be 'implicit in the concept of ordered

liberty and therefore, implicit in every dec is~on making

function, call it judicial, quasi-judicial or administrative.

Where authority functions under a statute and the statute

provides for the observance of the principles of natural jus t~ce

in a particular manner, natural justice w ~ l l have to be observed

in that manner and in no other. No wider r ~ p h t than that

provided by statute can be claimed nor can the rlght be

narrowed. Where the statute IS silent about the observance of

the principles of natural justice, such statutory sllence is taken

to imply compliance with the principles of natural lustice. The

implication of natural justice being presumptive it may be

-- 96. A. I .R. (1969) SC 78 at 90.

excluded by express words of statute or by necessary

intendment 97 So the principles of natural justice can be

modified and also in exceptional cases they can even be

excluded. SO far as the audi alteram partem rule IS concerned

both in England and In India it is well establ~shed that where a

rlght to a prior notice and an opportunity to be heard before an

order is parsed would obstruct the taking of prompt actlon, such

a right can be excluded where the nature of the action to be

taken, its object and purpose and the scheme of the relevant

statutory provisions warrant Its exclusion, nor can the audi

alteram partem rule be invoked if importing it uould have the

effect of paralysing the administrati\'e process or uhere the need

for promptitude or the urgency of taking action so demands, as

pointed out in Maneka Gandbis' case.g8 If legislation and the

necessities of a situation can exclude the principles of natural

justice including the a u d ~ alteram partem rule, a fortiori so can

a provision of the constitution for a constitut~onal provision has

a far greater and all-pervading sanctity than a statutory

provision.99

In Union of,, -100 ~t was held that

97, Union of, V. A.1.R (1985) SC 1416.

98. A . I . R . (1978) SC 597 at 681.

99. Ibid at 629.

100. A. I .R. 1985 SC 1416.

clause (2) of Article 311 embodies in express words the audi

alteram partem rule This principle of natural justice having

been expressly excluded by a constitutional provision namely the

second proviso to clause (2) of Article 311, there is no scope

for reintroducing it by a side-door to provlde once again the

same inquiry ah ich the constitutional provlslon has exprehsly

prohibited.lOl In Suresh v , m e r s i t v af

t i d a l o 2 the S . C held that the questlon whether the

requirements of natural justice have been met by the procedure

adopted in a given case must depend to a great extent on the

facts and circumstances of the case in polnt, the constitution of

the Tribunal and the rules under which it functions. In

otherwords if a statutory provision either speclf~cally or by

necessary implication excludes the application of any or all the

princlples of natural justlce then the Court cannot ignore the

mandate of the Legislative or the statutory authorlty and read

into the concerned provision the princlples of natural justlce In

v. -103 the Supreme Court upheld the

decision taken by the competent authorlty under Rule 56(j) of

the Fundamental Rules, Compulsorily retiring a Government

Servant. It did not require any opportunity to be given to rhe

101. Ibid at 1462-63.

102. (A I.R. 1969 SC 198)

103. A. I .R. 1971 SC 40.

Government servant concerned to show cause against the

proposed action. 104

In India, a law made by the parliament or a state

legislature should stand the test of constitutionality. It is

submitted that even if there is no provision for observance or

compliance with the p r ~ n c ~ p l e s of natural justice, Courts may

read natural justice with a vlew to sustain the law as

constitutional. 105

In-V.W

m l 0 6 it was held that natural justice need not be followed tf

it is so d~rec ted by the legislature.lO'i In cases of emergency

situation which requires immediate action or dire public

interest, or in cases of academic adjudication or where it is

impracticable or in situations which require immediate

preventive action etc, the requirement of hearing may be

-- 104. Hegde. J observed "There is no denying the fact

that in all o rhanisa t~oni and more so in Government or anisation there is a good deal of dead wood. It is in ~ u % l i c interest to chop off the same.

105. Charan V , V. A.1.R. 1990 SC 1480.

106. A.I.R. 1988 Sc 1136.

107. The same ,view was taken b y , the Supreme Court in ~ . ~ . ~ . ~ . ~ l v a m l V . Union (1990) 4 SCC 516.

excluded.1°8 Natural justice may be excluded if its effect

would be to stultify the action sought to be taken or would

defeat and paralyse the adm~n~st ra t ion of the law. Where an

obl~gat ion to give notice and opportunity to be heard would

obstruct the taking of prompt action, espec~ally action of a

preventive or remedial nature, right of prior notice and

opportunity to be heard may be excluded by 1m~l1cat1on.l09

In U o n of ln!.ljl V Cvanamlde India & . , I 1 0

Chinnappa Reddy, I , speaking for the Court held that legislative

action, plenar) or subordinate is not subject to rules of natural

justice. It is subm~tted that In Parliamentary legislation, the

proposition is self-evident In the case of subord~nate

legislation, it itself provide for a notice and for a hearing, no

one can insist upon it and it will not be permissible to read

natural justice into such legislative activit) In SixUmum

Svear Comoanv Union of ~ 1 1 1 it u a s reiterated that

f ~ x a t ~ o n of price for Sugar is a legislattve policy and the

, . 4.1 R %2%?!% t:i s-rules of

natural ustice ma be excluded because of different reasons /ike time, &ace, apprehended danger and the 11ke.

109. Maneka V. Union AIndiaI.R. 1978 SC.597 The Court observed that ~f importing the r ~ g h t to be heard has the effect of paralysing the adm~nis t ra t~ve process, or the need for promptitude or urgency of the situation so demands, natural justice may be excluded.

110. (1987) 2 SCC 720, 734 and 735

111. (1990) 3 SCC 223.

principles of natural justlce would not apply. The requlremrnts

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 to be dealt with, and so forth.112

The doctrine of natural justice has come In for increas~ng

considerat~on in recent years and the Courts have been w o r k ~ n g

out [heir ideas of the procedure whrch fair adminrstrarron

requires in many different situations.113 But at the same tlme

they have taken an increasingly sophistrcated vreu of what it

requires in individual cases. 114

112. V . D u k e (1949) 1 All. E R.109 at 118

113. Wade H.W.R. Administrative Law 1988, atp. 532

114. Lord Hailshan L.C, in Pearlbere \I . YuLy (1972) 1 WIR 34 at 540 .