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 hale 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 of 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 inb, 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 lJustice is bein applied more wldely and IS producing more case law $an even before.. . . ". 6. Sathe, S.P. Administrative Law (4th edn Bombay, Tripathi), p. 164.
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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.
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
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 .