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 .