Sandeep Report
Sandeep Report
Sandeep Report
INTRODUCTION
1.1 Introduction
The term "principle of natural justice" is derived from the Latin word "jus
natural," and although it is not codified, it is closely tied to common law and moral principles.
It is a natural law that has nothing to do with any statute or constitution. All inhabitants of
civilised states place the highest value on adherence to the natural justice principle. The
Supreme Court issued its directive with the passage of time and the formation of social, just,
and economic statutory protection for workers during the early days of fair practise, when
industrial regions were governed by a strict and rigid law to hire and fire.
natural justice. Sometimes, the reasonable decision is irrelevant; what important is the process
and the participants in arriving at the reasonable decision. It is not constrained by the idea of
"fairness," and it comes in a variety of hues and tones depending on the situation. There are
three rules: -
The first is the "Hearing Rule," which provides that the party or person who will
be impacted by the judgement made by the expert panel shall be given a reasonable opportunity
Second, the "Bias Rule" generally states that an expert panel should be impartial
while making a judgement. The judgement should be made in a free and impartial manner that
court action made by the presiding authority on a justifiable and valid basis.
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The principle of natural justice is a very old concept that dates back to ancient
times. This concept was also known to Greek and Roman people. Natural justice was
recognised in the days of Kautilya, arthashastra, and Adam. When Eve and Adam ate the fruit
of knowledge, according to the Bible, they were forbidden by the god. Eve was given a fair
chance to defend herself before the sentence was handed down, and the same procedure was
followed in the case of Adam. The concept of natural justice was later accepted by English
jurists. Natural justice is derived from the Roman words 'jus-naturale' and 'lex-naturale,' which
laid out the principles of natural justice, natural law, and equity.
This concept was introduced in India at an early stage. The court held in
Mohinder Singh Gill vs. Chief Election Commissioner that the concept of fairness should be
in nature.
India. In any case, the words, Justice Social, Economic and political ‟liberty of thought,
conviction, love is fuse in the Preamble of the constitution. Article 14 ensures equality under
the steady gaze of law and equal protection of law to every one of the citizens of India and
Article 21 ensures the right to life and liberty to every one of the people in India to protect
liberty and guarantee life with dignity, which is the rudimentary provision. Article 22
guarantees the right to natural justice and provision of chance of fair hearing to the captured
individual. Also, constitutional remedies are ensured under Article 32, 226, and 136 in the issue
relating to the violation of any of fundamental rights just as in the instances of hardship of the
natural justice of fundamental rules of methodology are the preliminary premise of a decent
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administrative set up of any country. The concept and doctrine of Principles of Natural Justice
and its application in Justice conveyance framework isn't new. It has its place since the start of
justice conveyance framework. Natural justice is a statement of English common law, which
In the expressions of Justice Krishna Iyer Natural justice is an unavoidable reality of secular
law where an otherworldly touch breathes life into legislation, legislation and adjudication to
make reasonableness an ideology of life. It has numerous shading and shades, numerous
protect against any Judicial or administrative; order or action, unfavorably influencing the
considerable rights of the people. Various jurists have depicted the principle in an unexpected
way. Some called it as the unwritten law (jus non scriptum) or the law of reason. It has,
nonetheless not been discovered to be equipped for being characterized, yet a few jurists have
with reasonableness to get justice and to forestall premature delivery of justice. With the entry
of time, some principles have developed and solidified which are all around perceived
justice connotes essential principles of justice, which are made accessible to everybody
defendant during preliminary. Principles of natural justice are established on reason and edified
public policy. These principles are embraced to conditions of all cases. Such principles are
materialto choices of every legislative office, councils and decisions of all courts. In the present
world the significance of principle of natural justice has been acquiring its strength and it is
presently the embodiment of any legal framework. Natural justice rules are not codified laws.
It's anything but conceivable to characterize absolutely and deductively the articulation 'natural
justice'. They are essentially common – sense justice which are inherent the soul of individual.
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They are in light of natural beliefs and qualities which are all inclusive in nature. ' Natural
justice' and 'legal justice' are substances of 'justices' which should be gotten by both, and at
whatever point legal justice neglects to accomplish this reason, natural justice must be brought
in guide of legal justice. Rules of natural justice have created with the development of human
progress. It's anything but the creation of Constitution or humankind. It started alongside
force, man has consistently spoke to somebody which is not been made by him and such
somebody must be God and His laws, Divine law or Natural law, to which all worldly laws
should and actions should adjust. It is of 'higher law of nature' or 'natural law' which suggests
The main principle is that 'No man will be a judge in his own motivation' for
example to say, the deciding authority should be unprejudiced and without bias. It Implies that
no man can go about as a judge for a reason where act naturally has some Interest, might be
pecuniary or something else. Pecuniary interest manages the cost of the strongest proof against
impartiality. The accentuation is on the objectivity in dealing with and deciding a matter.
Justice Gajendragadkar, as then, at that point he was, observed in a case revealed in M/s
Builders Supply Corporation v. The Union of India and others2 , "clearly pecuniary interest,
howsoever little it could be, in a topic of the proceedings, would completely disqualify a
member from going about as a judge". Ruler Hardwick observed in one of the cases, "In a
question of so delicate a nature, even the presence of evil is to be stayed away from." Yet it has
been set down as principle of law that pecuniary interest would disqualify a Judge to choose
the matter despite the fact that it's anything but demonstrated that the decision was in any way
influenced. This is consequently a question of faith, which a common man should have, in the
deciding authority.
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The principle is appropriate in such cases additionally where the deciding
authority has a few personal interest in the matter other than pecuniary Interest. This might be
looking like a few personal relationships with one of the parties or hostility against any of them.
In one of the cases orders of punishment was held to be vitiated, as the officer who was in the
In one of the selections, which was held for the post of Chief Conservator of
Forest, one of the members of the Board was himself a contender for the post. The entire cycle
of selection was held to be vitiated as the member would be a judge in his own cause
committee was comprised to enquire into the grumbling made against an Advocate, the
Chairman of the Committee was one who had once showed up before as counsel for the
complainant. Constitution of such a committee was held to be terrible and it was noticed, "in
such cases the test isn't whether truth be told the bias has influenced the Judgment; the test
consistently is and should be whether a prosecutor could sensibly capture that a bias credited
to a member of the Tribunal may have worked against him in an official choice of the Tribunal."
members having bias ought to be accepted at the most punctual open door before beginning of
the proceedings in any case, ordinarily, It would be considered as waiver to that complaint.
Notwithstanding, golden string of natural justice sagaciously went through the collection of
Indian constitution. Preamble of the constitution includes the words, 'Justice Social, Economic
and political' liberty of thought, belief, worship... What's more, equality of status and of chance,
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which not just guarantees fairness in social and economic exercises of the people yet
additionally goes about as shield to individual’s liberty against the arbitrary activity which is
Aside from preamble Article14 guarantees equality under the steady gaze of law
and equal protection of law to the resident of India. Article 14 which strike at the root of
arbitrariness and Article 21 guarantees right to life and liberty which is the fundamental
provision to protect liberty and guarantee life with dignity. Article 22 guarantees natural justice
and provision of fair hearing to the captured individual. Directive principles of state Policy
specially Article39-A deals with social, economic, and politically backward sections of people
and to accomplish this object for example this part guarantee free legal aid to impoverished or
disabled people, and Article 311 of the constitution guarantees constitutional protection to civil
servants. Moreover Article 32, 226, and 136 gives constitutional remedies in cases violation of
any of the fundamental rights including principles of natural justice. With this short
acquaintance creator attempts with analyze a portion of the significant provision containing a
of natural justice or fundamental rules of procedure for administrative action are neither fixed
nor prescribed in any code. They are better known than described and easier proclaimed than
defined. It has many colours and shades and many forms and shapes. According to De Smith,
the term “natural justice” expresses the close relationship between the common law and moral
principle intended to invest law with fairness, to secure justice and to prevent miscarriage of
justice.
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Natural Justice has always been an important facet in the subject of
Administrative Law. The term “Natural Justice” stands for basic principles of justice, that a
litigant has access to during trial. It has had a place in the justice system since the beginning of
time. As defined by Lord Esher M.R.- ‘the sense of what is right and wrong’. In a famous
English decision in Abbott vs. Sullivan, it is stated that “the Principles of Natural Justice are
easy to proclaim, but their precise extent is far less easy to define”. It has been stated that there
is no single definition of Natural Justice and it is only possible to enumerate with some certainty
the main principles. During the earlier days, the expression Natural Justice was often used
interchangeably with the expression natural Law, but in the recent times a restricted meaning
has been given to describe certain rules of Judicial Procedure. This paper will talk about the
concept of natural justice, its origin, its principles and more importantly, its evolution from the
In English law, natural justice is technical terminology for the rule against bias
(nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the
term natural justice is often retained as a general concept, it has largely been replaced and
The basis for the rule against bias is the need to maintain public confidence in
the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. Actual
bias is very difficult to prove in practice whereas imputed bias, once shown, will result in a
decision being void without the need for any investigation into the likelihood or suspicion of
bias. Cases from different jurisdictions currently apply two tests for apparent bias: the
"reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been
taken is that the differences between these two tests are largely semantic and that they operate
similarly.
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The right to a fair hearing requires that individuals should not be penalized by
decisions affecting their rights or legitimate expectations unless they have been given prior
notice of the case, a fair opportunity to answer it, and the opportunity to present their own case.
The mere fact that a decision affects rights or interests is sufficient to subject the decision to
the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed
by Article 6(1) of the European Convention on Human Rights, which is said to complement
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CHAPTER – 2
Natural justice has discovered its root in the early Greek and Roman empires,
being recognized even in Kautilya's Arthashastra. In a larger number of ways than other the
Indian concept of dharma is similar to the concept of natural justice. All organs of the State
including executive, legislative and judicial were kept up by the king. In this way the obligation
was on the king to reform and make the Code of law to keep up peace and equality in the State.
Indian emperor Ashok set out the significant rules regarding what nature of justice ought to be.
He had extraordinary worry for reasonableness in the activity of justice, alert and tolerance in
officials by ruling that “any judge who reaches an incorrect decision is to be fined and removed
from the bench permanently”. As it is apparent, principles of natural justice are not a new
invention, but also, it isn’t a product of man either. It originated from our core moral conscience
and has been since built upon by several philosophers, jurists, kings and teachers. Aristotle,
who is considered the biggest proponent of Natural justice, holds that, as support for a virtuous
existence that advances lives of individuals and promotes perfect community, people should
make use of practical wisdom or active reason to be consistent with a virtuous existence. Later
on, the concept of natural justice was accepted by the English jurist. The word natural justice
is derived from the Roman word ‘jus-naturale’ and ‘lex-naturale’ which planned the principles
“Natural justice is a sense of what is wrong and what is right.” In India, this
concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief Election
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Commissioner, the court held that the concept of fairness should be in every action whether it
The term “natural justice” expresses the close relationship between the common
law and moral principles and describes what is right and what is wrong. It has an impressive
history. It has been recognized from the earliest times: it is not judge-made law. In days bygone
the Greeks had accepted the principle that “no man should be condemned unheard”. The
historical and philosophical foundations of the English concept of natural justice may be
insecure, nevertheless they are worthy of preservation. Indeed, from the legendary days of
Adam and of Kautilya’s Arthashastra, the rule of law has had this stamp of natural justice which
makes it social justice. The rules of natural justice were placed so high that it was declared that
“no human laws are of any validity, if contrary to this”, and that a court of law could disregard
an Act of Parliament if it is contrary to natural law. The origin and development of equity in
England owed much to natural law. The concept of natural law and natural rights influenced
the drafting of the US Constitution. It also provided a basis for international law and
In India it is said that principles of natural justice are of very ancient origin and
were known to the Greek and Romans. Later on, the principles of natural justice were
strengthened by judges of common law courts in England. After Independence, the same
common law traditions were continued in law courts of India. However, these lofty ideals of
justice were not alien, and are not only proclaimed but well adhered by the judges in ancient
India. In ancient India, foremost duty of a judge was to maintain integrity which included
impartiality and total absence of bias or attachment. The concept of integrity was given very
wide meaning and the judicial code of integrity was very strict, Brihaspati Says: “A judge
should decide cases without any consideration of personal gain or any kind of personal bias;
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his decision should be in accordance with the procedure prescribedby the texts. A judge who
performs his judicial duties in this manner achieves the same spiritual merit as a person
performing a Yajna.” Further, the judges and counsellors guiding the King during the trial of a
case were required to be independent and fearless and prevent him from committing any error
or injustice. Katyayana says, "If the king wants to inflict upon the litigants (vivadinam) an
illegal or unrighteous decision, it is the duty of the judge (samya) to warn the king and prevent
him.”
relating to the conduct of proceedings are also well established in ancient India and there was
little or no chance to misuse the provision and decide the matter without giving sufficient
The idea of Principle of natural justice is not another idea. Natural justice has
an impressive history which has been perceived from the earliest times. The Greeks had
acknowledged theprinciple that 'no man should be denounced unheard'. It was first applied in
'Nursery of Eden' where opportunity to be heard was given to Adam and afterward giving him
punishment. Some of the evidences of natural justice is also found in Roman law. Principle of
natural justice has also been found in the Kautilya's Arthsastra, Manusmriti and unique text.
Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian
in the fifth and sixth Centuries A.D. called it "'juranaturalia" for example natural law.
In India the principle is predominant from the old times. We discover it Invoked
in Kautllya's, Arthashastra. In this unique circumstance, para 43 of the judgment of the Hon'ble
Supreme Court In the case of Mohinder Singh Gill v. Boss Election Commissioner6 , might be
usefully quoted:
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"Undoubtedly, natural justice is an unavoidable aspect of secular law where an
a belief of life. It has numerous tones and shades, numerous structures and shapes and, save
where valid law rejects, it applies at the point when individuals are influenced by acts of
authority. It is the bone of solid government, perceived from most punctual occasions and not
a spiritualist confirmation of judge-made law. Undoubtedly from the legendary long stretches
of Adam and of Kautllya's Arthashastra-the rule of law has had this stamp of natural justice,
which makes it social justice. We need not go into these deeps for the present but to demonstrate
that the roots of natural justice and its foliage are honorable and not modern. Today its
application should be supported by current legislation, case law or other Extant principle, not
the ancient harmonies of legend and history. Our jurisprudence has endorsed its pervasiveness
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CHAPTER - 3
Judiciary under Indian Constitution plays a star vital job. Its achievement has
been significant in all areas of the nation's life. As it is one of the powerful establishments of
the world, it chooses cases contacting all facts of human life and relationship. It is the guardian
of the human rights, protector of the constitution and promoter of the peace, cordiality and
balance between various organs of the government. The Constitution of India which was
drafted by the Constituent Assembly and which came into power on 26th January 1950 contains
number of provisions that deal with structure, functions and power of the judiciary. It presented
a brought together system in all the States and Union Territories. It's anything but a three-tier
judicial system viz. the Supreme Court, the High Courts in each state and Union Territories.
The level of intercession of judiciary may rely upon the legal system continued
in Different countries of the world. For example, in Britain, as there is no written Constitution,
the Judiciary may practice just restricted powers of judicial review Vis-a Vis the delegated
legislation and ministerial action of the government. In this way, the law of the judiciary in
In USA, the judiciary is considered as the supreme body over the legislature and
executive. The Constitution of USA enables the judiciary to check the other two organs on the
In any case, in India, the judiciary has come to practice vast powers of Judicial
Review in regard of the legislative and executive functions of the State and of the judicial
actions of the Judiciary. The Supreme Court and High Court in India not just act as the arbiters
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to decide or resolve the questions that may arise between the Center and State yet it also ensures
and implement the fundamental rights of the residents against arbitrary action of the States.
They also decipher the laws made by the legislature. The decision of the Supreme Court is final
if by any act of the legislature or Executive, any Fundamental rights or human rights are
abridging.
In any case, in India, the judiciary has come to practice vast powers of Judicial
Review in regard of the legislative and executive functions of the State and of the judicial
actions of the Judiciary. The Supreme Court and High Court in India not just act as the arbiters
to decide or resolve the questions that may arise between the Center and State yet it also ensures
and implement the fundamental rights of the residents against arbitrary action of the States.
They also decipher the laws made by the legislature. The decision of the Supreme Court is final
if by any act of the legislature or Executive, any Fundamental rights or human rights are
abridging.
1. Interpreting the constitution with due distinction to the wishes of the framers of the
constitution
2. Upholding the federal principle of keeping up with the harmony between the different
5. To check and equilibrium the legislative or executive actions of the public authority.
6. Under Article 32 and 226 the Supreme Court and the High Court individually has the
power to issue writs or orders for accomplishing the destinations of those articles.
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7. Through Public Interest Litigations, Judiciary has the power to get some information
about the execution of the schemes run by the public authority. For instance, in
Direction in Common Cause v. Association of India, the Apex Court set down
directions for how blood ought to be gathered, put away and given for bonding and how
Nemo debet esse judex in propria causa or rule against bias: means ‘when there
is a dispute between two parties judge shall always be the impartial third party’. It means that
the judge shall not be a relative, a friend, an enemy, or otherwise related to the subject matter
of the litigation. The word ‘bias’ literally means ‘anything which tends or may be regarded as
tending to cause such a person to decide a case otherwise on evidence’. Let us take an
repayment within six months, however, after six months ‘B’ refuses to pay. ‘A’ the creditor,
approached civil court for recovery of the said debt. ‘C’ a good friend of ‘A’ happens to be the
judge of that civil court. Do you think that ‘C’ the civil court judge is fit to be a judge in this
case?
Answer is ‘NO’, for the reason that to be a judge one must be impartial and
independent, in this case even though ‘C’ may rightly decide the case but, it is against the
cardinal rule of natural justice i.e. “justice should not only be done but should manifestly and
McCarthy). Accordingly, “no man can be a judge in his own cause,” (Nemo judex in causa
sua). Therefore, the rule against bias strikes against those influences which may improperly
affect the judge in arriving at a decision which can be considered as fair in all sense of the term.
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So, the minimal requirement of natural justice is that the authority must be composed of
(i) Personal Bias: This bias arises when the deciding authority/judge is related
to either of the parties to the litigation (which we already discussed in above illustration 1).
Such a relation may be personal, fiduciary, or professional and maybe friendship or hostility.
Illustration-2: ‘B’, a wife filed a divorce petition in family court on the grounds
of cruelty on the part of the husband ‘A’. As the matter was not yet finally decided by the Court
they were living under the common roof. That day, during dinner, a quarrel broke out between
them and the wife in the course of the heated argument told the husband that as the judge of
the family court was her uncle’s friend she is sure to get the divorce!
Now, the question is, whether the judge of the family court is disqualified to be
a judge in this case or can husband ‘A’ set aside such order, if passed, on the ground of bias?
The answer is YES because there is a personal bias. Accordingly, personal bias arises when
there is a relationship between either of the party to the litigation and the deciding authority.
pecuniary bias if it has a financial interest in the subject matter of the litigation.
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Illustration-3: ‘A’ multinational company from India has a case pending before
the Supreme Court of India, affecting the financial interest of the company. The matter was
pending before ‘X’ a judge of the Supreme Court, who has 2% shares in the company ‘A’.
In this case, ‘X’ judge of the Supreme Court is not eligible to be a judge (in this
case) because he is having a pecuniary interest in the matter. In this regard, let us take the
Supreme Court judgment in the Jeejeebhoy v. Assistant collector, Thana (AIR 1965 SC 1096),
in the instant case the Chief Justice reconstituted the bench when it was found that one of the
members of the bench was a member of the cooperative society for which the land was
acquired. To understand the pecuniary bias more clearly you may refer to Dr Bonham’s case.
(iii) Subject matter bias: This bias arises, where the judge/deciding authority
is interested in the subject matter of the litigation. When the judge is having an interest in the
subject matter there arises a conflict between his duty and his interest, under the circumstance,
it is difficult to believe that he acted impartially. Accordingly, to save the confidence of people
Let us understand the subject matter bias more clearly by analysing the
judgement of the Supreme Court in A. K. Kraipak v. Union of India (AIR 1970 150), in this
case, one Naquishbund, who was the acting Chief Conservator of Forests, was a shortlisted
candidate for selection to the Indian Foreign Service and was also the member of Selection
Board. Naquishbund, did not sit on Board when his name was considered. His name was
recommended and he was selected by the Public Service Commission. Unsuccessful candidates
challenged his selection before the Supreme Court. Quashing the selection of Naquishbund,
the court observed: "it is against all canons of justice to make a man judge in his own case. It
is true that he did not participate in the deliberations of the committee when his name was
considered. But, then the very fact that he was a member of the selection board must have had
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its own impact on the decision of the selection board... At every stage of his participation in
the deliberations of the selection board, there was a conflict between his interest and his duty."
In this case, the court explicitly held that where conflict arises between his duty and his own
interest the deciding authority should recuse, and such proceedings stand vitiated on the
grounds of bias.
(iv) Departmental or Official Bias: Only rarely will this bias nullify the
proceedings. Because mere general interest in the subject matter of the case, especially in an
Illustration-4: ‘A’ a student misbehaved in the class, and a complaint was made
by the teacher in whose class he misbehaved. The Principal of the College constituted a
committee to inquire into the matter consisting of the three teachers of the same school who
were very good friends of the teacher who complained. Here, the accused (student) cannot
such actions are necessary to enforce requisite institutional discipline and also the efficiency.
However, in extreme cases of departmental bias courts may vitiate the proceedings.
the road transport business, conferring the monopoly rights in favour of the Road Transport
Corporation owned by the state. Thousands of private players will be affected by the decision,
hundreds of objections would be filed with the Secretary of Transport Corporation (who is the
brain behind the plan). If anybody, let us say one ‘X’ is not satisfied with the remedy provided
by the Secretary, he can approach the law courts contending the departmental/official bias. As
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Secretary, as he is the author and executor of the nationalisation scheme and at the same time
In such situations, the law courts may admit the contention of the petitioner, as
the Secretary was allowed to act as judge in his own cause. The illustration is based on the SC
exceptional cases, even departmental/official bias is a good ground to vitiate the proceedings.
Audi alteram partem or rule of fair hearing: is considered to be the first principle
of rule of law. This principle infers that the person against whom any action affecting his rights
suspended from appearing in the examination for one year. However, he was not allowed to
prove his innocence by presenting relevant evidence. Can we say that the decision of the
authority is justified? NO, because the rule of natural justice suggests that every person must
It is very important to note that hearing means ‘fair hearing’ it must not be a
(i) Notice
(ii) Hearing
(iii) Cross-examination
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Let us briefly discuss these components of ‘fair hearing’ with the help of
illustration-6 (see above). In this illustration, the first requirement of a fair hearing is ‘notice’,
i.e. the authority must serve a proper notice specifying charges made against the student. Such
notice must contain details of time, place and nature of the hearing, and must provide sufficient
After serving proper notice, on a specified date, ‘A’ must be heard (either orally
or through a written representation). If any evidence or witnesses were produced by the other
party, ‘A’ shall be allowed to cross-examine such evidence. For the reason that the cross-
examination is a potent weapon to elicit truth or falsity of the statement and trustworthiness of
the witness.
well established component of natural justice. But, in administrative cases, only where the
matter is too complicated or technical or party is illiterate or does not understand the legal
proceedings, under such exceptional circumstances the party is entitled to legal assistance.
Thus, in the above illustration, ‘A’ may not claim legal representation through a lawyer as a
However, all the evidence produced against ‘A’ must be received by the
authority in his presence and the same shall be communicated to him properly. Lastly, ‘A’ shall
be heard by the deciding authority i.e. if the Registrar of the University is vested with the power
to decide the matter, the hearing shall be given by the Registrar, and not by any other authority
like the Registrar (Exams). The reason being ‘one who decides must hear’, anything contrary
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3.3 Reasoned Decisions or Speaking orders:
This is the recent addition to the principles of natural justice. It means, as judges
shall act according to the rule of law, they are duty bound to explain why and on what reasons
he/she decided the matter in a particular way. Along with being impartial and an adherent of
‘fair hearing’ the judge must also provide reasons for his decisions; as reasons are the link
between the order and the mind of the maker. A decision without reasons cannot be accepted
as fair, just and reasonable, and hence, such decision would be violative of Articles 14 (right
to equality) and 21 (right to life and personal liberty) of the Indian Constitution. Therefore, the
established norm of natural justice is that every judicial, quasi-judicial and administrative
authority acting judicially must supply reasons for their decision, which is termed as a reasoned
nowhere is the expression ‘natural justice’ used. However, the golden thread of natural justice
sagaciously passed through the body of the Indian constitution. The preamble of the
constitution includes the words, ‘justice social, economic and political’ liberty of thought,
speech, expression, belief and worship, and equality of status and of opportunity, which not
only ensures fairness in social and economic activities of the people but also, shields individual
liberty against the arbitrary action. Apart from the preamble, Art 14 ensures equality before the
law and equal protection of the law to the citizens of India. Art 14 which strikes at the root of
arbitrariness and Art 21 guarantees right to life and liberty which is the fundamental provision
to protect liberty and ensure life with dignity. Art 22 guarantees natural justice and provision
of a fair hearing to the arrested person. Directive principles of state Policy especially Art 39-A
takes care of the social, economic and the politically backward sections of people and to
accomplish this object i.e. this part ensures free legal aid to indigent or disabled persons, and
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Art 311 of the constitution ensures constitutional protection to civil servants. Furthermore, Art
32, 226, and 136 provides constitutional remedies in cases where there is a violation of any of
Article 14 guarantees all citizens equality before law and equal protection of
law. It hinders any form of discrimination and forbids both discriminatory laws and
any arbitrary or discriminatory State action. The sphere of equality as embodied in Article 14
has been expanding as a result of the judicial decisions. This Article laid down a general
preposition that all persons in similar circumstance shall be treated in a similar way both in
and unhindered power on an authority is dreadful for being arbitrary and discriminatory. Art.
14 illegalize prejudice in the definite exercise of any discretionary power. Art. 14, smacks at
In Delhi Transport Corporation v. DTC Mazdoor Union, the Apex Court held
that “the audi alteram parterm rule, in essence, enforce the equality clause in Article 14 of the
Constitution, is applicable not only to quasi-judicial bodies but also to an administrative order
adversely affecting the party unless the rule has been excluded by the Act in question.”
Similarly in Maneka Gandhi v. Union of India the Supreme Court had opined that Article 14
is an authority for the proposition that the principles of natural justice are an integral part of
the guarantee of equality assured by Article 14 an order depriving a person of his civil right
passed without affording him an opportunity of being heard suffers from the vice of violation
of natural justice.
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There are several cases in which Article 14 of the Constitution of India is
invoked in order to protect the individuals from the violation of natural justice and similarly in
Central Inland Water Transport Corporation Ltd v. Brojo Nath, an order of termination of
service of an permanent employee merely by issuing a three months was held to be invalid and
unconstitutional as being depriving the employee of the right and Protection under Art. 14. The
Court ruled that it would strike down, any unfair and unreasonable clause of a contract entered
into between parties who were not equal in bargaining power. And the Court furthrt held that
such an action was in conformity with the mandate of the “great equality clause in Art. 14.
observed that the rule of Audi Alteram Parterm is an ingredient of Article 14 of the
Constitution. For the reason that Article 14 states “no order shall be passed at the back of a
person, prejudicial in nature to him, when it entails civil consequences” an in such a manner
Article 14 of the Constitution holds the element of Natural justice into it.
law‟ the issue arise whether the above mentioned expression can be read as principles of natural
justice. For which, the Supreme Court of India in majority ruled that the word „law‟ under Art.
21 could not be read as rules of natural justice. Since, the rules of natural justice are vague and
imprecise and thus the Constitution could not be read as laying down an indistinguishable
standard.
like a brooding omnipresence”. Therefore, the procedure laid in Article 21 “must be right, just
23
and fair” and shall not be arbitrary, oppressive, otherwise, it would be no procedure at all and
The Supreme Court has taken a massive inventive step forward in improving
the administration of criminal justice by suggesting that free legal support to poor prisoners by
and if the Accused is entitled to appeal against the order/judgment/decree, the Accused has the
right to claim legal aid and if he is unable to meet the expense, the State shall make all such
arrangements in order to provide legal aid. “Now, a procedure which does not make available
legal service to an accused person who is too poor to afford a lawyer and who would, therefore,
have to go through the trial without legal assistance, cannot possibly be regarded as
„reasonable, fair and just”. In India free-legal aid to differently able persons are considered to
This Article provides protection to arrested person from arrest and detention in
certain cases which within its sphere contains fundamental element of natural justice, Article
22 (1) and (2) grants the following fundamental rights upon a arrested person: i) Right to be
informed, instantaneously the grounds for arrest. ii) Right to consult and be defended by a legal
practitioner of his choice. iii) Right to be produced before the nearest magistrate within twenty-
four hours from arrest excluding of travel from the place of arrest to the Court of Magistrate.
iv) Right not to be detained in custody without the authority of the Magistrate beyond the period
The primary object of this provision is that the arrested person shall be
communicated the ground for arrest. Since, on the knowledge of the grounds of arrest, the
24
arrested person shall make arrangements for necessary legal remedies and shall also make an
application before an appropriate court with Application for bail or also utilize the remedy of
approaching the High Court with a Writ of Habeas Corpus. The Apex Court observed that
Article 22 (1) of the Constitution of India represents a rule which has at all times regarded as
vital and fundamental for protection of personal liberty in all legal systems where the Rule of
Law prevails. Any such communicated grounds made to the arrested person shall be precise,
defined, clear and unambiguous, in any case if the grounds are not wholly unveiled to accused
than it shall amount to denial of „fair hearing‟ and ultimately shall result into violation of
Natural Justice. In re, Madhu Limaye the facts being; Madhu Limaye, Member of the Lok
Sabha along with several other persons were arrested. Madhu Limaye, one of the arrested
persons addressed a petition in the form of a letter to the Apex Court by invoking Article 32 of
the Constitution and thereby pointing out that he along with several other members had been
arrested but no ground for such an arrest was communicated. The Supreme Court observed that
Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for
safeguarding personal liberty in all legal systems where the Rule of Law prevails. In Joginder
Kumar V. State of U.P. The Supreme Court observed that no arrest can be made because it is
lawful for the Police officer to do so. The existence of the power to arrest is one thing. Arrest
and detention in lock-up of a person can cause incalculable harm to the reputation and self-
esteem of a person. No arrest should be made by Police Officer without reasonable satisfaction
after some investigation as to the genuineness and bona fides of a complaint and a reasonable
belief both as to the person's complicity and even so as to the need to effect arrest. If an Accused
of appeal of the Accused, inclusive of special leave to appeal for want of legal assistance. The
court may judge the situation and consider from all angles whether it is necessary for the ends
25
of justice to make available legal aid in the particular case. This is the present position
Article 32 and 226 of the constitution provides for remedies for violation of
fundamental Rights and as well as other statutory rights, Under Article 32 and Article 226 the
remedies can be exercised by seeking for orders for issuance appropriate Writ, Directions and
Orders. In U.P.Warehousing Corporation V. Vinay Narayan Vajpayee, the Court held that Writ
of certiorari or prohibition usually goes to a body which is bound to act fairly or according to
natural justice and it fails to do so. In the same manner where the decision is affected by bias,
personal, or pecuniary, or subject matter as the case may be considered as violation of principle
of natural justice. In such circumstances also writ of certiorari and prohibition can be issued
both Under Art 32 and 226. In Gullapalli Nageshwar Rao V. APSRTC the SC quashed the
decision of the AP Govt., nationalizing Road transport on the ground that the Secretary of the
Transport Department who was given a hearing was interested in the subject matter. Any order
made in violation of principles of natural justice is void ab-initio and is liable to be annulled
and cancelled. The Supreme Court in Nawabkhan Abbaskhan V.State of Gujarat held that an
order which infringes a fundamental freedom passed in violation of the audi alteram partem
rule is a nullity. When a competent court holds such official act or order invalid or sets it aside,
it operates from nativity i.e. the impugned act or order was never valid. Apart from Art.32 and
226, it is Art 227 which can be used by High Court as another extraordinary weapon to prevent
Art 311 deals with removal, Dismissal or reduction in rank of persons employed
in civil capacities under the Union or State, though Art. 310 of the constitution adapts „doctrine
26
of Pleasure‟. The expression „reasonable opportunity of being heard‟ includes all the aspects
of the principles of natural justice and accordingly no dismissal, removal, or reduction of rank
of civil servant can be ordered without giving reasonable opportunity of being heard. In Punjab
National Bank vs. Kunj Behari Misra, the following question was raised: when the inquiry
officer, during the course of the disciplinary proceedings, comes to the conclusion that the
charges of misconduct against an official are not proved, then can the disciplinary authority
differ from that view and give a contrary finding without affording and opportunity to the
delinquent officer The Court has ruled that natural justice demands that the authority which
proposes to hold the delinquent officer guilty must give him a hearing. If the inquiry officer
olds the charges to be proved then the report has to be given to the delinquent officer who can
make a representation before the disciplinary authority takes further action prejudicial to the
delinquent officer.
The Indian Constitution protects the citizens from any halfway judgment. That
is the reason supreme power is given to the Judiciary to settle on choices dependent on the rule
of law. The courts in India nor will be nor constrained by the government and they don't address
of Power'. This fundamentally implies that both the lawmaking body and executive are not
permitted to meddle in the working of the Judiciary. Along these lines, to effectively execute
their free authority, the judges of both the Supreme Court and the High Courts should be
delegated with no impact on impedance from different parts of the government or from private
or partisan interests.
27
B. Structure of Courts- The Judiciary is one of the three lynchpins of a
democracy, the other two being the legislature and the executive.8 Every one of the three work
in the show to guarantee that the democratic system works productively. Be that as it may, the
executive and the legislature need minds their power. Judiciary has numerous significant roles
2. To protect fundamental and different rights of the citizens of India To satisfy the duty
forced on the shoulders of judiciary, the judicial system is partitioned into three degrees
of Courts in India.
3. District Court: It is the most reduced court arranged in each district of each State. This
is the place where most citizens go to for any debate in their city or religion.
4. High Court: Each state has its own High Court, which is unquestionably the highest
judicial authority of the state. Any individual oppressed by the request for the District
5. Supreme Court: This is the Apex Court in a country. Any remaining Courts including
High Courts and the District Courts are subordinate to it. The decisions made by the
Supreme Court remains over any remaining subordinate courts. Decision passed by the
people for the crimes they perpetrate. Pretty much every social circumstance which needs a
rule is overseen by the Judiciary. Along these lines, at whatever point there is a dispute, the
courts mediate in giving arrangements. Regardless of whether that dispute might be between
citizens, citizens and government or between two governments or even the central and state
28
D. Judicial Review- The judiciary has the last hang on the Constitution of India.
All things considered, if there is any violation of the fundamentals of the Constitution, the court
can considerably over compose laws passed by the Parliament. This cycle is called Judicial
Review.
Citizens are characterized in our Constitution. On the off chance that, any citizens feel that any
of such rights are violated, they can move toward their local High Courts or the Supreme Court
29
CHAPTER - 4
The meaning of the concept of natural justice and the principles it revolves
around. But like many other legal provisions and legal principles, this rule is also not absolute
and contains within itself some restrictions which have developed over the time. Applications
of natural justice have been excluded during various occasions, which would be discussed
individual from injustice. Where there is no possibility of injustice being accrued to the party,
or where the observance of these principles would cause more injustice, they need not be
observed. For example, in case of war our army shall defend the country, it cannot go on
hearing each and every one affected by their actions, if they are compelled to observe the
principles of natural justice, and it will be suicidal. Where, the very existence of the State in
impracticability, interim preventive measures etc.the principles of natural justice need not be
observed.
allows authorities to do certain things which are necessary to be done at the moment, and those
acts which would in a normal situation not be allowed by the law. It is invoked in situations
where there is no definite authority to decide on a matter. The Supreme Court has although
established that the Doctrine of Necessity should not be invoked every now and then for even
small matters, which might lead to absence of rule of law. If there is a choice to whether let a
30
biased person act on a matter or whether to stop the matter itself, the preference will be given
to the biased person to act on it to get definite decisions, although which may be affected by
the bias of that particular person or authority, but nonetheless, the decision of that biased
In Ashok Kumar Yadav and others vs. State of Haryana and others, it was
decided by the court that a member of Public Service Commission can’t exclude himself from
the selection process completely just because they might be related to some of the candidates,
and may exclude themselves only during the selection process of those candidates to whom he
might be related.
should be allowed or not. Under the doctrine of absolute necessity, it is absolutely necessary to
let the case of a biased person be decided. In the modern times, there is not much difference
The principle of natural justice can be excused by certain acts of the parliament.
Parliament may through its powers get rid of the procedures that are otherwise necessary for
any administrative action. It must also be noted here that any action of the parliament which
does not permit the individuals certain rights during the time period of the act, such act is bound
to come under the scrutiny of the courts and may be challenged under Article 14 of the
Constitution. A statute may exclude natural justice either expressly or by necessary implication
In Charan Lal Sahu vs. Union of India, the central government, under
the Bhopal Gas Disaster Act (Processing of Claims) Act, 1985, authorized itself to represent
all the victims. This was challenged on the fact that the govt. held 22% share in the Union
Carbide Company, and the interests of the government and the company overlapped while
31
there was a conflict of interests between the victims and the government. The court said that
even though the agreement might be true, no other body can represent the victims. Statutory
exception to natural justice might not be expressed but it is implied in the application, along
observed in India that during a situation of emergency, in those cases where the right to be
heard will affect the government process, it will be excluded by the law for the time being. This
means that any hearing or any process which may jeopardize the interest of the public at large
would not be needed under the principle of natural justice and any such right would be obviated
for the time being. It is necessary in those situations where the process of fair hearing may take
too much and in consequence put the society in trouble either due to any external force, natural
In Mohinder Singh Gill vs. CEC, there were constituency elections going on in
Ferozpur, which were interrupted by mob violence, which caused some ballot papers and boxes
to be destroyed, while the elections were still underway in some places. The ECI ignored the
right to be heard and without any notice ordered re-elections. The court did not interrupt the
work of the ECI and dismissed the claims for notice by saying that the said act was necessary
in an emergency situation and Audi alteram partem can be ignored can be excluded in this
situation.
Where a person does not have any right, and neither can he derive any right
from any statute or any common law provision, he cannot ask for a remedy in that case under
the principles of natural justice, and he may in such case forfeit procedural fairness. The Latin
32
principle Ebi Jus ebiremedium stands for where there is a right, there is a remedy. So naturally,
In J.R Vohra vs. Indian Export House (P) Ltd. Provisions for termination and
creation for limited tenancies were made under the Delhi Rent Control Act. The result of these
provisions was that after the end of the term of the limited tenancy, it can be terminated by the
authorized office and can serve warrant of possession to the landlord without notifying the
tenant. The Supreme Court of India, upholding the validity of these warrants, said that once the
term of tenancy is over, the said person has no right to possession over that particular place and
that such a warrant will not affect any of the rights conferred on him. Hence, in this case the
exception is explained very well by the court, that no right can be infringed if it was not
to not dispense any such information which may put the safety of the public at threat. State
must make sure that it should not compromise the security of its territory, and that it should
protect all the information that it has which is of public importance. In Balco Employees Union
vs. UOI, the Supreme Court established that the principles of natural justice had no role to play
in those situations where policies considering the public at large were to be undertaken.
It was held by the court in this case that unless any action of the government is
arbitrary, illegal or unenforceable due to any valid reason, the decision of the government
cannot be challenged as a violation of the principles of natural justice. In this particular case,
the employees had challenged the decision of the government regarding disinvestment in PSUs.
The petition was dismissed on the basis of the reasoning given above.
33
4.7 Exception in Cases of Impracticality
This is one of the simplest exceptions to the rule of natural justice. Natural
justice can be applied only when it is practical in nature to apply it. But natural justice can be
excluded when there is no practicality to the situation in it. In Bihar School Examination Board
vs. Subhash Chandra, the examination board conducted class X board exams. But it was alleged
that there was mass copying in the exams, and during the checking it was on first view found
Following this, the board issued a fresh notice which directed the students to
appear for fresh exams again, without giving any chance to the students to have themselves
heard. This was challenged in the High Court by students, and the High Court quashed the
boards’ notice saying that the principle of Audi Alteram Partem has been violated and the
students have not been heard. In response to this decree, the board approached the Supreme
Court, and the Supreme Court struck down the order of the High Court, saying that it is
impractical to hear issues of all students in such a small time and it was held that on the grounds
This case may also be read in the context of another exception, i.e. exception in
is of complete administrative nature, in such cases, their evaluations may be excluded from the
ambit of the rule of natural justice. In JNU vs. B.S. Narwal, the respondent was a student of
Jawaharlal Nehru University. The student was removed from the university on the basis of his
academic performances, without being given any hearing prior to the notice. The case reached
the Supreme Court where the court observed that the nature of the decision is academic
34
authority in nature and that decisions from such an authority automatically declines any right
to be heard, and it was held that if the assessment of the authority is competent and it decides
that the work of the particular student is unsatisfactory, then the rule of natural justice may not
be applied.
In a case the Supreme Court held that the maintenance of surveillance register
by the police is a confidential document. Neither the person whose name is entered in the
register nor any other member of the public can have access to it. Furthermore, the court
observed that the observance of the principles of natural justice in such situation may defeat
the very purpose of surveillance and there is every possibility of the ends of justice being
Same principle was followed in S.P. Gupta v. Union of India, where the
Supreme Court held that no opportunity of being heard can be given to an Additional Judge of
It may be pointed out that in a country like India surveillance may provide a
very serious constraint on the liberty of the people, therefore, the maintenance of the
A student of the university was removed from the rolls for unsatisfactory
academic performance without giving any pre-decisional hearing. The Supreme Court held that
the very nature of academic adjudication appears to negative any right of an opportunity to be
heard. Therefore, if the competent academic authorities examine and assess the work of a
35
student over a period of time and declare his work unsatisfactory, the rules of natural justice
may be excluded.
In the same manner when the Commission cancelled the examination of the
candidate because, in violation of rules, the candidate wrote his roll number on every page of
the answer, the Supreme Court held that the principles of natural justice are not attracted.
The Court observed that the rule of hearing is strictly construed in academic
discipline as if this is ignored it will not only be against public interest but would also erode
social sense of fairness. However, this exclusion shall not apply in case of disciplinary matters
of a preventive action and not a final order, the application of the principles of natural justice
may be excluded. In a case where the institution passed an order debarring the student from
entering the premises of the institution and from attending classes till the pendency of a
The Delhi High Court held that such an order could be compared with an order
of suspension pending enquiry which is preventive in nature in order to maintain campus peace
and hence the principles of natural justice shall not apply. Therefore, natural justice may be
excluded if its effect would be to stultify the action sought to be taken or would defeat and
obligation to give notice and opportunity to be heard would obstruct the taking of prompt
36
action, especially action of a preventive or remedial nature, right of prior notice and opportunity
In a case the Supreme Court held that the maintenance of surveillance register
by the police is a confidential document. Neither the person whose name is entered in the
register nor any other member of the public can have access to it. Furthermore, the court
observed that the observance of the principles of natural justice in such situation may defeat
the very purpose of surveillance and there is every possibility of the ends of justice being
Same principle was followed in S.P. Gupta v. Union of India, where the
Supreme Court held that no opportunity of being heard can be given to an Additional Judge of
It may be pointed out that in a country like India surveillance may provide a
very serious constraint on the liberty of the people, therefore, the maintenance of the
of natural justice because these rules lay down a policy without reference to a particular
individual. On the same logic principles of natural justice can also be excluded by a provision
of the Constitution also. Constitution of India excludes the principles of natural justice in
Articles 22, 31(A), (B), (C) and 311(2) as a matter of policy. Nevertheless if the legislative
action is arbitrary, unreasonable and unfair, courts may quash such a provision under Articles
14 and 21 of the Constitution. In a case the Supreme Court held that no principles of natural
37
justice have been violated when the government issued notification fixing the prices of certain
drugs. The Court reasoned that since notification flowed from a legislative act and not an
In a case the Supreme Court held the principles of natural justice are not
38
CHAPTER - 5
JUDICIAL CASES
5.1 K. L. Tripathi vs State Bank of India and Others: 1984 AIR 273, 1984 SCR (1) 184
Shri K.L.Tripathi, the appellant herein joined the State Bank of India in 1955. At the relevant
Certain complaints were received about his conduct from Gorakhpur Branch Manager, Shri
R.S. Kapoor, Staff Officer Grade II, who reported to the Head Office on 5th May, 1974 that,
from the information given to him by some members of the staff of Deoria Branch, namely,
Shri M.R. Sharma, Head Clerk, M.S. Gupta, Field Officer and from other inquiries made by
him he found that the bills negotiated by the Gorakhpur Branch under a Revolving Letter of
Credit No. 20/1 dated 21st March, 1974 established by the Deoria Branch on Gorakhpur Branch
for Rs. 2 lakhs at a time subject to maximum of Rs. 17 lahks had remained unpaid to the extent
of Rs. 12 lakhs and that the openers of the Letter of Credit, M/s Jamuna Prasad Munni Lal
Jaiswal, Deoria were unable to meet their obligations. In the same letter, he also informed that
Deoria Branch had opened another Revolving Letter of Credit No. 20/2 dated 3rd April, 1974
for Rs. 50,000 per day subject to a maximum of Rs. 10 lakhs and that because the clauses of
the credit had not been drawn properly, the bills were not negotiated thereunder by his Branch,
Certain other allegations giving the particulars of the bills and records were
mentioned. In those circumstances, the head office ordered a preliminary enquiry which was
conducted by Shri R.P. Srivastava, Staff Officer, Grade II and having considered his report,
the head office directed Shri B.D. Sharma, Chief Manager to carry out investigation under the
and in the course of the investigation, he visited Deoria and Gorakhpur. On 9th September,
1974, charges were framed. The information Shri Sharma could gather was that M/s Jamuna
Prasad Muni Lal Jaiswal, Station Road, Deoria was a sole proprietorship concern with Shri
Jamuna Prasad Jaiswal as the sole proprietor. Their business was to deal in scrap iron which
they purchased from Sugar Mills around Deoria and from other sources. The firm maintained
a current account only with an average balance of Rs. 10,000. There was no opinion report on
record with the Branch. It appeared that the firm had no experience in oil business. Shri Sharma
enquired from Mr. Tripathi. From the report of Shri Sharma, it appears that in respect of all
relevant entries upon which he has based his conclusion, he asked Shri Tripathi after giving
him the gist of the relevant materials gathered from other persons in the absence of the appellant
and asked his pinion or explanation in respect of those. We have examined the report of Shri
Sharma and find that at all stages in respect of all the matters mentioned in the report the
appellant was associated with the preliminary investigation and his versions or explanations
He admitted that amount of Draft No. BS001560 dated 12th January, 1974 for
Rs. 75,000 was not credited to "Margin on Documentary Credits Account" before issuing the
Letters of Credit. He however stated that margin amount of Rs. 75,000 was lying with the Bank
as security by means of a draft and the Bank's interests were not jeopardised and were fully
protected to that extent. The draft was, however, not duly discharged. He admitted that there
was delay in retiring of bills but he gave certain explanation to the show cause notice.
Thereafter on this basis, on 19th June, 1975, the appellant was issued a show
cause notice. In the said show cause notice, the appellant was communicated of three charges.
These charges were mainly based on the report of Shri Sharma as mentioned hereinbefore First
40
charge was furnishing of opinion report to the Fertilizer Corporation of India in an unauthorised
manner. Second charge was about the appellant's conduct in opening two clean revolving
Letters of credit Nos. 20/1 dated 21st March, 1974 and the other 20/2 dated 3rd April, 1974.
The third charge was about irregularities in respect of the opening of Letters of Credit and
payment of bills negotiated thereunder. Sufficient particulars of these charges were mentioned
and these appear in the charge-sheet which we need not set out in extenso.
It is thus evident that as the Branch Manager you had failed miserably to
safeguard the Bank's interest; on the contrary, you had wilfully/knowingly committed gross
irregularities in the opening of the aforesaid Letters of Credit and payment of bills drawn
thereunder and attempted to defraud the Bank. Your actions, which have seriously jeopardised
the Bank's interests and exposed the Bank to grave financial risks, cast grave doubts on your
integrity and bonafides. It is, therefore, proposed to proceed against you in terms of Rule 49
read with Rule 50 of the State Bank of India (Officers & Assistants) Service Rules. You are,
therefore, required to submit to us your written statement in defence in terms of Rule 50 (2)
ibid in respect of the aforesaid charges within 15 days of the receipt hereof; also, if you so
desire, you may apply for a hearing in person with the undersigned. Please note that in the
event of your failure to submit the reply within this period, it will be understood that you have
no defence to offer."
It may be mentioned that regarding Charge number (ii), his reply was that the
words which ought to have been there 'accompanied by once used and unidentified plant
lubricating oil in 200 litres each drum' which were safeguard for encashments pursuant to the
letters of credit, were important and significant. He accepted that those words were not properly
placed in the letters of credit. As would appear from the report of Shri Sharma that the appellant
had admitted that he had changed the words "at a time" and had used the words 'per day'. The
41
appellant's defence was that he meant the same thing. In respect of these charges, he admitted
the facts and used expressions like these "I regret that due to inadvertence-was not credited".
loans. Another charge was that he did not ensure prompt payment of the bill on receipt. He
admitted in his reply that this was so but stated that the Gorakhpur branch "created
complications and he was put to harassment". He admitted that the furnished in respect of
charge (iii) (d) in the show cause notice, incorrect particulars regarding payment of bills
Another explanation for these matters was that he had to leave office frequently
and early during the day for inspection. He admitted in reply to charge (iii) (e) that he used to
Thereafter on 1st May, 1976, the appellant received a letter from the Chief
General Manager intimating to him that in accordance with the independent investigation
conducted under Rule 50(1) of the State Bank of India (Officers & Assistants) Service Rules
governing the appellant's service in the Bank, the statement of charges served dated 19th June,
1975 and the appellant's reply thereto dated 5th November, 1975 were submitted to the Local
Board at its meeting held on the 28th April, 1976 and it was resolved that the appellant be
dismissed from the service in terms of Rule 49 (f) of the aforesaid service rules. Thereafter the
appellant by the said rule was required to submit his written statement showing cause why the
The appellant was further informed that if no reply was received, the State Bank
of India's authority will presume that the appellant had no submissions to make. Along with
the said letter, a copy of the statement of charges and a copy of the report of the Investigating
Officer who investigated, consisting of investigation in respect of each of the allegations and
42
the appellant's explanations to the allegations during the time of the preliminary investigation
and the facts and materials gathered during the preliminary investigation in which the appellant
The appellant on 18th June, 1976 submitted a reply. These have been set out in
pages 107 to 129 (of the Paper Book)-Annexure 4 to the affidavit of Shri K. P. Rau filed in
these proceedings. Apart from the detailed reply which had already been submitted by the
appellant, a reading of the explanation submitted by the appellant made it clear according to
the appellant that none of the charges could be made the basis of any disciplinary action
He referred to his excellent record from 1967 to 1973 in which he stated that
the entry of appellant's performance was 'excellent' in 1970; that he was an asset to the
institution. He further stated that even if there was some technical fault on account of certain
interpretation of rules mentioned in the report, the appellant had sought guidance of the Field
Officer and further submitted that on account of technical mistake where the Bank has not
suffered any monetary loss or any other type of loss and in view of his long service for more
than 20 years during which the appellant's service as Officer Grade I was excellent, no action
It may be mentioned that the facts in that case were different. In the instant case
though reasons have not been expressly stated, these reasons were implicit namely, the nature
of the charges, the explanation offered and the reply of the appellant to the show cause notice.
These appear from a fair reading of the order impugned in this case. It, further, appears that
there was consideration of those facts and the decision was arrived at after consideration of
those reasons. It is manifest, therefore, that absence of any denial by the appellant, indeed
admissions of the factual basis and nature of the explanation offered by the appellant were
43
considered by the authority to merit the imposition of the penalty of dismissal. Such a
conclusion could not, in the facts and circumstances of the case, be considered to be
Counsel relied on the observations of this Court in the case of Union of India v.
H. C. Goel at pages 723-726 of the report. These observations were made again in the context
of jurisdiction of the High Court to interfere with the orders passed under Article 311 (2) read
along with Civil Service (Classification, Control and Appeal) Rules. The Court rejected the
plea made in that case that even if the enquiry officer made findings against the public servant,
the Government could never re-examine the matter so that even if the Government was
satisfied that the findings against the public servant were erroneous, the Government must
proceed on the basis that the public servant was guilty and impose some punishment on him.
That is not the position here. In this case, there is no evidence that the disciplinary authority
was not satisfied with the findings arrived at in the investigation. This case, therefore, is of no
Another decision of this Court was relied on by counsel for the appellant,
namely, the decision in the case of The Barium Chemicals Ltd. and Anr. v. The Company Law
Board and Others. That case arose under proceedings in respect of an order passed by the
Company Law Board under Section 237 (b) of the Companies Act appointing four inspectors
to investigate the affairs of the appellant company, on the ground that the Board was of the
opinion that there were circumstances suggesting that the business of the appellant company
was being conducted with intent to defraud its creditors, members or any other persons and that
the persons concerned in the management of the affairs of the company having connection
therewith were guilty of fraud, misfeasence and other misconduct towards the company and its
members. Bachawat, J., at page 342 of the report was of the opinion that in view of the
44
circumstances disclosed therein, without more, could not reasonably suggest that the business
of the company was being conducted to defraud the creditors, members and other persons or
that the management was guilty of fraud towards the company and its members. From the
observations of Shelat J. in that decision, it appears that he was also inclined to take the same
view. The facts of the instant case are, however, different. It has to be emphasised that the
appellant was not charged for defrauding the Bank. He was charged mainly for the conduct
which suggested that he acted improperly and in violation of the principles on which sound
banking business should be conducted. The charge against the appellant was that he had acted
in violation of procedure of the Bank, he had disregarded all safeguards in sanctioning the
overdrafts, encashing bills and his conduct had exposed the bank to grave risks and that he had
flagrantly violated the bank rules and instructions with a view to cover up attempts to
misappropriate bank's money after defrauding the bank. Whether actual misappropriation had
been caused or bank defrauded or not were not relevant in respect of the charges against him.
For the reasons aforesaid, this appeal fails, but for reasons different from those
given by the High Court, and is accordingly dismissed but without any order as to costs. We
must, however, observe in conclusion that having regard to the record of the service of the
appellant prior to the conduct revealed in this case and further in view of the fact that actually
no loss has been occasioned to the Bank by the improper conduct of the appellant, if the Bank
considers in the interest of justice that the appellant should be given some job or employment
in some capacity which might mitigate or compensate in some measure the grave loss suffered
by the appellant consequent on the dismissal order, the Bank might consider taking such a
course of action.
45
5.2 Thressiamma vs Union of India (Uoi): 2000 (120) ELT 602 Ker
The above Writ Appeal is filed by the petitioner in O.P. No. 14526 of 1993. The
Original Petition was dismissed by judgment dated 23-12-1998. In the Original Petition, the
petitioner had prayed for a writ of certiorari or other appropriate writ and set aside Ext. P7 order
dated 21-7-1993 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi
seen that it was posted on 24-11-1993. On that date on behalf of the fourth respondent, an
objection was filed. In the paragraph 2 of the objection, the contention raised is that the Original
Petition was not maintainable, since an appeal lies to the Supreme Court under Section 35L of
the Act. The objection also deals with other contentions raised in the Original Petition. To the
objection, a reply statement was filed by the petitioner on 10-12-1993. It is seen that on 3-2-
1994 the Original Petition was admitted and notice was ordered. Thereafter it was posted on 7-
10-1998 before the learned Judge. On 7-10-1998 the learned Judge posted the case to 12-10-
1998 for argument regarding the maintainability of the Original Petition. Thereafter, it is seen
that the case was posted on various dates and it was finally heard on 8-12-1998 and judgment
was delivered on 23-12-1998. The learned single Judge dismissed the Original Petition.
In paragraph 3 of the judgment the learned Judge posed the question whether
the petition under Article 226 of the Constitution of India is maintainable, since an appeal lies
under Section 35L of the Central Excises and Salt Act to the Supreme Court. In paragraph 6 of
the judgment, the learned Judge held as follows : "All the authorities below found that
Glucovita Glucose D manufactured by the petitioner comes under Heading 1702.21 of the
Central Excises Tariff as preparation of other sugars. Thereafter, this Original Petition
under Article 226 of the Constitution raising the said question cannot be maintained when there
46
is a specific provision for appeal under Section 35L of the Central Excises and Salt Act".
However, the learned Judge thereafter went on to examine the question whether there was any
violation of the principles of natural justice and concluded that there was no violation. It is
We heard Sri A. Hidyatulla, Senior Counsel for the appellant and Sri. K. Rama
Kumar, Senior Standing Counsel on behalf of the respondents. Learned counsel for the
appellant raised three points. The Learned single Judge went wrong in holding that the Original
Petition was not maintainable. The Learned single Judge was not correct in going to the
question whether there was violation of the principles of natural justice after finding that the
Original Petition was not maintainable. The Original Petition ought to have been allowed on
the ground that there was violation of the principles of natural justice by the Tribunal. On the
other hand, Sri Rama Kumar contended that The Original Petition was not maintainable, since
there was an effective alternative remedy under Section 35L of the Act. There was
the principles of natural justice and In any event, the learned single Judge and exercised a
discretion, which is based on sound legal principles and hence should not be interferred in
appeal. In the second place, the doctrine has no application in a case where the impugned order
and principles of natural justice were alleged in the Writ Petition, the Writ Petition was
dismissed in limine. In paragraph 4 of the judgment, the Supreme Court held as follows: "It is
manifest in the present case that the appellant had alleged in the Writ Petition that the Taxing
Officer has no authority to impose the tax and there was no validity constituted Antarim Zila
47
Parishad after December 31,1959. It was further alleged that Sections 114 & 124 of the U.P.
There is also an allegation that the imposition of the tax violated the provisions
of Article 276 of the Constitution... It was further contended on behalf of the appellant that the
procedure for assessment of the tax was not followed and there was violation of
the principles of natural justice." Thereafter, the Supreme Court observed as follows : "In view
of the allegations of the appellant that the taxing provisions are ultra vires and that there
was violation of the principles of natural justice, we think that the High Court was in error in
summarily dismissing the Writ Petition on the ground that the appellant had an alternative
remedy is not a bar to the maintainability of a Writ Petition, if there is violation of the
the principles of natural justice. A perusal of the Original Petition shows that the petitioner has
attacked the order of the Tribunal on the ground of violation of Rule 23 of the Tribunal
Procedure Rules and also violation of the principles of natural justice. As held by the Supreme
the principles of natural justice or violation of any Rule or Act, the dismissal of the Writ
Petition on the ground of alternate remedy is not proper. Hence, we don't agree with the learned
So far as the present case is concerned, the learned single Judge went into the
question whether there is any violation of the principles of natural justice and gave a finding
that there is no violation of any Rule or the principles of natural justice. Certainly in appeal we
can go into the question whether the finding on this issue is correct or not, even though the
48
learned single Judge has taken the view that alternate remedy is available. Since such a finding
has been entered by the learned single Judge we went into the question and whether the view
that Ext. P7 order has been passed in violation of Rule 23 of the Appellate Tribunal (Procedure)
In the above view of the matter, we quash Ext. P7 and direct the second
respondent to reconsider Appeal No, E/3118/91-D afresh. If the Department wishes to raise the
contention that the addition of Tricalcium Phosphate and Vitamin D will amount to nutrient
supplement and also wishes to rely on any authority for proving the above case, it has to file a
petition under Rule 23 of the Appellate Tribunal (Procedure) Rules. Then the appellant will be
given an opportunity to file objection to it including the objection that the contention cannot be
raised, since admittedly it was not raised before the first two authorities. The Tribunal may
dispose of the appeal as expeditiously as possible. The judgment of the learned single Judge is
set aside.
5.3 Monga Metals (P) Ltd. vs Assistant Commissioner of Income Tax: (2000) 67 TTJ All
247
This is an appeal by the assessee in which the assessee has challenged the
assessment for the block period completed under the provisions of Chapter XIV-B of the
Income Tax Act, 1961 (hereinafter referred to as `the Act) on various grounds. Hearing of this
appeal has been fixed on priority basis as directed by the Hon'ble High Court of Allahabad vide
The counsel for the assessee first of all submitted that the notice required to be
served upon the assessee as per the provisions of section 158BC is analogous/within the
parameter of the requirements for a notice under section 148 of the Income Tax Act and,
therefore, the law relating to the requirements for the validity of the notice under section
49
148 and the case laws thereof, are fully applicable, so far as the requirements for a valid notice
According to the definition given as per section 158BA of Act, the block period
previous year in which the search had been conducted and period upto the date of
commencement of search in the previous year in which search was conducted. According to
the counsel, the definition of block period specifies the maximum number of previous
assessment years which can be covered in assessment for the block period and it is not
necessary that in each and every case the previous 10 assessment years are to be covered.
Explaining his point the assessee's counsel submitted that if assessee's business had been in
existence, say for only 3 previous assessment years, then the block period in that case will
include only 3 assessment years and not 10 assessment years. From this interpretation of the
provisions the assessee's counsel made out a case that in the notice under reference the exact
period falling within the block period i.e. assessment years; has not been mentioned and since
non mentioning of assessment year in a notice under section 148 of the Act has been held to
have rendered the notice under section 148 of the Act as a vague notice, the present notice
alleged to have been issued under section 158BC of the Act is also rendered vague and invalid.
He further submitted that the business of the assessee's company was started during the
previous year relevant to assessment year 1993-94 and since this fact was well within the
knowledge of the assessing officer, mentioning of the block period as "the previous years
relevant to 10 assessment years preceding the previous year 1996-97 and including the period
upto the last date of search warrant executed in the case as defined under section 158BA upto
the 3-9-1996", clearly goes to show that the assessing officer has simply mentioned the
definition of block period given under section 158BA of the Act and not the assessment year
which are requirement for a valid notice asking for the return of undisclosed income.
50
Explaining the illegalities further, the counsel submitted that since the assessing
officer/BOI/local authority in the notice, it is clear that the assessing officer was not satisfied
as to from whom he was going to ask for a return and in whose case was going to make
assessment for block period. The assessee's counsel further submitted that simply addressing
the notice in the name of company cannot be interpreted as a notice asking the company to
furnish its return in the status of the company and for the period during which it existed. Giving
an example, the assessee's counsel submitted that if a notice is addressed as per the provisions
of section 282(2)(b) of the Act to the principal officer, it cannot be interpreted as a notice asking
the addressed person i.e. the principal officer to furnish his return in the individual status.
Referring to the view taken by the learned Commissioner that the assessing
officer had condoned the defect, with reference to section 292B of the Act, we have no
hesitation in saying that this provision of law is not a panacea, pulling the assessing officer out
of any and all sort of statutory non-compliances by him. Section 292B only says that a return,
assessment notice, summons or other proceedings shall not become invalid merely by reasons
of any mistake, defect or omission in such return assessment notice, summons or other
proceedings if these are in substance and effect in conformity with or according to the intent
and purpose of this Act. Even a plain reading of this provision conveys that the heart of the
matter is that it is only a technical or venial sort of defect in any return, assessment notice,
summons or other proceedings that is capable of being cured under this provision. In this
connection a reference may be made to Departmental Circular No. 179, dated 30-9- 1975,
which, as found at p. 6928 of Chaturvedi and Pithisaria's Commentary, 4th Edn. Vol. VI, also
states that section 292B was enacted to provide against purely technical objections without
substance coming the way of the validity of assessment proceedings, etc. We are certain that
to treat a return as, valid for the purposes of the completion of an assessment which as per
51
unambiguous provisions of law, namely, section 139(9)" shall be treated as valid return and the
provisions of this Act shall apply as if the assessee had failed to furnish the return" is not at all
a technical or venial matter. In our considered opinion it does in nowhere come even within
Income escaping assessmentIf the assessing officer has reason to believe that
any income chargeable to tax has escaped assessment for any assessment year, he may, subject
to the provisions of sections 148 to 153, assess or reassess such income and also any other
income chargeable to tax which has escaped assessment and which comes to his notice
subsequently in the course of the proceedings under this section, or recompute the loss or the
depreciation allowance or any other allowance, as the case may be, for assessment year
concerned (hereinafter in this section and in sections 148 to 153 referred to as the relevant
assessment year;) Provided that where an assessment under sub-section (3) of section 143 or
this section has been made for the relevant assessment year, no action shall be taken under this
section after the expiry of four years from the end of the relevant assessment year, unless any
income chargeable to tax has escaped assessment for such assessment year by reason of the
failure on the part of the assessee to make a return under section 139 or in response to a notice
issued under sub-section (1) of section 142 or section 148 or to disclose fully and trully all
material facts necessary for the assessment for that assessment year."
From the indepth analysis of aforesaid scheme of provisions relevant for making
of a regular assessment, assessment of escaped income and assessment of search cases what
we have been able to understand is that so far as the regular assessment is concerned, the
assessing officer is to complete the same after serving on the assessee a notice under section
143(2) and on the date specified in such notice or as soon as afterwards, as may be, on the basis
of evidence which the assessee may like to produce or such other evidence which the assessing
52
officer may require the assessee to furnish on specified points and after taking into account the
relevant material which he has gathered. Under this scheme of assessment the requirement of
service of notice under section 143(2) has been held to be a procedural irregularity and non-
compliance of this requirement has resulted in setting aside of the assessment for proceeding
from the stage of irregularity and it is so because after furnishing of a valid return the assessing
officer issues a valid jurisdiction to proceed for making a regular assessment but as far as the
other two schemes i.e. the scheme provided for 'assessment of escaped income contained in
provisions of sections 147, 148 and 149 and the scheme of special procedure for assessment in
search cases" as provided under Chapter XIV-B i.e. under the provisions of sections
158B, 158BA, 158BB and 158BC etc. are concerned these go to show that : object of both the
schemes is same i.e. object is to tax the income which has not already been taxed. Under the
former scheme the requirement is that in the opinion of the assessing officer the income should
have escaped the assessment and search is not necessary and the prerequisite conditions to
assume jurisdiction to tax the escaped income limits are with respect to the quantum of escaped
income as provided under section 147 and service of a valid notice under section 148 has to be
served upon the person and within the limitation prescribed under section 149, whereas in the
later scheme the prerequisite mandatory requirements before the assessing officer can assume
jurisdiction to make assessment of undisclosed income are that: there should have been a search
action under section 132 of the Act or a requisition for books or documents under section
132A of the Act, which is analogous to the requirement of taxing of escaped income in the
earlier scheme. It is only on fulfilment of this condition that the assessing officer gets clothed
with the jurisdiction to proceed for making a block assessment of undisclosed income, meaning
thereby that the assessing officer is said have jurisdiction to proceed with under the provisions
53
The second required prerequisite condition, before proceeding to make
assessment under section XIV-B i.e, and assessment of block period is that the assessing officer
has to serve a notice in confirmity with the requirement of section 158BC of the Act upon the
person in whose case search has been conducted and in whose case the assessing officer wants
to make an assessment under Chapter XIV-B, meaning thereby that as in the case of assessment
of escaped income, the assessing officer can proceed to assess the escaped income only after
the fulfilment of requirements upto the stage of service of a valid notice in confirmity with the
provisions of section 148, in case of search i.e. in case of assessment of block period to be
made under Chapter XIV-B of the Act the assessing officer can proceed to assess the
undisclosed income after satisfaction of the requirements up to the stage of service of a valid
notice in confirmity with the provisions of section 158BC of the Act. Since under both these
As far as first question is concerned, now the law is well settled that when the
finding of the quasi-judicial authority are found to have been influenced by the
advice/information/evidence which have been obtained from 3rd party and brought on record
without the knowledge of the assessee or without allowing the assessee an opportunity to
As far as first question is concerned, now the law is well settled that when the
finding of the quasi-judicial authority are found to have been influenced by the
advice/information/evidence which have been obtained from 3rd party and brought on record
without the knowledge of the assessee or without allowing the assessee an opportunity to
54
information or without allowing the assessee to cross-examine such 3rd party, the order has to
following the decision of various courts including Hon'ble Supreme Court and also the decision
of Tribunal (supra), have no hesitation in holding that the assessing officer's action refusing the
permission to the assessee for cross-examination of Mr. Madan Hada and others not only
constituted infraction of right conferred gross violation of the principle of natural justice and
has vitiated the assessment on the issues relating to the undisclosed income referred to in the
assessee's arguments and also with respect to the undisclosed income on account of so-called
excess stock of scrap alleged to be available on the date of search and the assessment order to
that extent has to be declared as bad-in-law, a nullity and void. We, subject to the direction that
assessing officer may proceed with the matter afresh if the law so permits, hold accordingly.
5.4 U.N. Pandey vs Eastern Coalfields Ltd. And Ors.: 2000 (86) FLR 595, (2000) ILLJ
1397 Cal
While the petitioner was working as Despatch Clerk in Sodepur Colliery under
Eastern Coalfields Ltd. by virtue of a charge-sheet dated September 13, 1998 some charges
of Article 12 of the Constitution of India, if the enquiry against the workman is held arbitrarily
or in violation of the principles of natural justice, then the employer can produce fresh
evidence before.
55
Tribunal to bring home (sic) the charges. In my opinion such would not be the
position in a case where a workman's employer is a "state" within the meaning of Article 12 of
the Constitution of India. Because in a case where the employer is a "state" within the meaning
of Article 12 of the Constitution of India then such violation of principles of natural justice is
But when the employer is not a "state" within the meaning of Article 12 of the
Constitution of India question of violation of Article 14 does not arise. In this connection
Patel reported in (1985-II-LLJ-206) (SC). In Tulsiram Patel case (supra) majority view of a
Bench of five Judges of Supreme Court in paragraph 86 of the reported decision laid down
the principle of law as follows at p. 245. "The principles of natural justice have thus come to
be recognised, as being a part of the guarantee contained in Article 14 because of the new and
dynamic interpretation given by this Court to the concept of equality which is the subject-
matter of that Article. Shortly put, the syllogism runs thus: violation of a rule
a violation of a principle of natural justice by a State action is a violation of Article 14. Article
14, however, is not the sole repository of the principles of natural justice.
What it does is to guarantee that any law or State action violating them will be
struck down. The principles of natural justice, however, apply not only to legislation and State
action but also where any Tribunal, authority or body of men, not coming within the definition
of "State" in Article 12, is charged with the duty of deciding a matter. In such a case,
the principles of natural justice require that it must decide such matter fairly and impartially."
56
From the above quoted majority view in Tulsiram Patel case (supra) it is
apparent that violation of principles of natural justice by an employer who is a "state" within
the meaning of Article 12 of the Constitution of India is a violation of Article 14 and such
action is liable to be struck down by the Court. Principles of natural justice when violated in
case of an employer who is not a "state" within the meaning of Article 12 of the Constitution
question of violation of Article 14 does not arise. "In such case" meaning thereby when the
the principles of natural justice require that it must decide such matter fairly and impartially.
Therefore, in a case when a disciplinary action taken by an employer who is not a "state" within
the meaning of Article 12 of the Constitution of India is called in question by an employee who
is a workman within Section 2(s) of Industrial Disputes Act, 1947 then the only forum available
to the workman is the forum under Industrial Disputes Act, 1947. But in a case where a
disciplinary action taken by an employer who is a "state" within the meaning of Article 12 of
the Constitution of India is called in question by an employer is a "state" within the meaning
within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 the workman can, in
my opinion, initiate a writ proceeding before the High Court provided his fundamental rights
guaranteed by Part-Ill of Constitution of India have been violated by such action of the
employer.
Both the findings of the enquiry officer and the report of the enquiry officer
were furnished to the writ petitioner and the writ petitioner submitted a representation in respect
of the findings of the enquiry officer to Chief General Manager on November 5, 1998. In the
said representation the writ petitioner raised various objections in respect of the enquiry report
and stated that he cannot be held responsible on the strength of such enquiry proceeding and
findings which has lost its relevance due to clearing manipulation, unwarranted and motivated
57
addition by the enquiry officer. I have already recorded earlier that the Chief General Manager
by his letter dated November 7, 1998 communicated his order to the Agent, Sodepur R, Colliery
directing that the writ petitioner be dismissed from service with immediate effect. The relevant
lines of the said letter dated November 7, 1998 have been quoted in the earlier part of this
judgment. It is apparent from the said letter dated November 7, 1998 of the Chief General
Manager that there is no mention that the Chief General Manager considered the representation
preferred by the writ petitioner which was submitted to the Chief General Manager on
November 5, 1998.
The learned Advocate for the petitioner argued that on the face of the record it
shows that the Chief General Manager, the authority who took the decision to dismiss the writ
petitioner from the service, did not consider the points raised by the writ petitioner in his
representation submitted by the writ petitioner to the Chief General Manager on November 5,
1998 raising several questions about the enquiry report. The learned Advocate for the petitioner
The learned Advocate for the respondents on the other hand argued that such
itself does not violate the principles of natural justice. The learned Advocate for the
respondents argued that it has been laid down by Supreme Court in Managing Director, ECIL
v. B. Karunakar reported in (1994-I-LLJ-162) (SC) even when the enquiry report is not
furnished to the concerned employee the Court should first direct the employer to furnish the
enquiry report to the employee and employee should be asked to show how he is prejudiced
for non-furnishing of the enquiry report if the employee fails to show any prejudice then non-
furnishing of the enquiry report would not violate principles of natural justice. The learned
Advocate for the respondents argued that on the same analogy even after the enquiry report is
58
furnished to an employee and employee makes a representation, if the employer does not
consider the representation so made by the employee then that does not by
itself violate principles of natural justice. The learned Advocate for the respondents argued that
the employee has to satisfy the Court that for such non-consideration of his representation he
has been prejudiced. I do not accept the proposition of the learned Advocate for the respondents
in B. Karunakar case (supra) it has, inter alia, been observed as follows at page 176:
5.5 Chandrama Tewari vs Union Of India, Through General Manager, Eastern Railways:
The Judgment of the Court was delivered by SINGH, J. The short question
which arises in this appeal is whether the disciplinary proceedings taken against the appellant
resulting in his dismissal are null and void as the Enquiry Officer failed to comply with the
principles of natural justice in holding the enquiry. The question relating to the non-compliance
of principles of natural justice is founded on the grievance that a copy of paper No. 5 although
mentioned in the memo of charges was not supplied to the appellant, and that he was not
permitted to inspect the same. A learned single Judge of the High Court has answered the
May, 1964. On 28th May 1964 coal lying at Pusauli Station was fraudulently removed by some
person giving out his name as Shambhu Tiwari. A criminal case was registered, but on account
of absence of reliable evidence, a final report was submitted. It appears that during the
preliminary enquiry held by the Department it was found that Chandrama Tewari, the appellant
had removed the coal lying at Pusauli Station posing himself as Shambhu Tiwari, a coal
contractor. On completion of the preliminary enquiry a charge sheet was issued to the appellant
on 6.2.1967. The appellant filed reply to the charges denying the same. An Enquiry Officer
59
was appointed before whom evidence was recorded and the appellant was afforded full
opportunity of cross-examining the witnesses. The Enquiry Officer submitted his report
holding the appellant guilty of charges framed against him. The punishing authority accepted
the enquiry report and issued orders on 27.6.1969 dismissing the appellant from the service.
The appellant filed a civil suit in the Trial Court for a declaration that the punishment of
dismissal awarded to him was illegal and unconstitutional mainly on the ground that the
enquiry had been held in violation of the principles of natural justice and he was denied
reasonable opportunity of defence. A number of other grounds were also raised in the suit
which need not be adverted as the controversy now is confined to the question of violation of
the principles of natural justice alone. The trial court decreed the appellant's suit on 31.1.1974.
The decree of the trial court was confirmed in appeal by the District Judge by his order dated
2.11.1974. On a second appeal being filed by the Union of India the High Court set aside the
judgment and decree of the subordinate courts on the findings that the appellant had been
afforded reasonable opportunity of defence and there was no violation of any principles of
Learned counsel for the appellant Shri M.K. Ramamurthy contended that the
memo of charges issued to the appellant expressly mentioned that paper No. 5 was proposed
to be relied by the Department against the appellant but in spite of demand being made by the
appellant a copy of that document was not supplied to him nor was he permitted to inspect the
same. In the absence of that document the appellant was handicapped in cross-examining Shri
A.C. Das, Dy. S.P., S.P.E. He further urged that failure to supply the copy of paper No. 5 was
in violation of the principles of natural justice rendering the proceedings, resulting in the order
of dismissal as void.
60
We have given our anxious consideration to the submissions made on behalf of
the appellant and we have further considered the aforesaid authorities referred to by the learned
counsel for the appellant but we do not find any merit in the appellant's submissions to justify
interference with the High Court's judgment. Article 311 of the Constitution requires that
awarded major punishment of dismissal. It further contemplates that disciplinary enquiry must
be held in accordance with the Rules in a just and fair manner. The procedure at the enquiry
must be consistent with the principles of natural justice. Principles of natural justice require
that the copy of the document if any relied upon against the party charged should be given to
him and he should be afforded opportunity to cross-examine the witnesses and to produce his
document which may not have been disclosed to him or the copy whereof may not have been
supplied to him during the enquiry when demanded would contravene principles of natural
justice rendering the enquiry, and the consequential order of punishment illegal and void. These
principles are well settled by a catena of decisions of this Court. We need not refer to them.
However, it is not necessary that each and every document must be supplied to the delinquent
government servant facing the charges instead only material and relevant documents are
necessary to be supplied to him. If a document even though mentioned in the memo of charges
is not relevant to the charges or if it is not referred to or relied upon by the enquiry officer or
the punishing authority in holding the charges proved against the government servant, no
exception can be taken to the validity of the proceedings or the order. If the document is not
used against the party charged the ground of violation of principles of natural justice cannot
successfully be raised. The violation of principles of natural justice arises only when a
document, copy of which may not have been supplied to the party charged when demanded is
61
used in recording finding of guilt against him. On a careful consideration of the authorities
cited on behalf of the appellant we find that the obligation to supply copies of documents is
confined only to material and relevant documents and the enquiry would be vitiated only if the
non- supply of material and relevant documents when demanded may have caused prejudice to
officer was dismissed from service on certain charges. The High Court of Madhya Pradesh
quashed the order of dismissal on the finding that the enquiry was held in violation of the
principles of natural justice in as much as the statement of witnesses recorded in the preliminary
enquiry were not supplied to the concerned officer as a result of which he could not effectively
cross- examine the witnesses produced before the enquiry officer. This Court while upholding
the view taken by the High Court, observed that the departmental enquiries should observe
rules of natural justice. The Court referred to the observations of Venkatarama Aiyar, J.
in Union of India v. T.R. Verma, [1958] SCR 499 "stating it broadly and without intending it
to be exhaustive it may be observed that rules of natural justice require that a party should have
the opportunity of adducing all relevant evidence on which he relies, that the evidence of the
opponent should be taken in his presence, and that he should be given the opportunity of cross-
examining the witnesses examined by that party, and that no material should be relied on
against him without his being given an opportunity of explaining them". Relying on the
aforesaid observations the Court held that right to cross-examine witnesses who give evidence
against a delinquent officer is a very valuable right and if effective exercise of that right is
prevented by the enquiry officer by not giving to officer relevant document to which he is
entitled, the enquiry cannot be said to have been held in accordance with the principles of
natural justice. In Triloki Nath v. Union of India, it was held that if a public servant facing
enquiry was not supplied copies of documents it would amount to denial of reasonable
62
opportunity. In that case the statement of witnesses recorded during the investigation of the
criminal case registered against the delinquent officer prior to the departmental proceedings
had not been supplied to him, as a result of which the delinquent officer was prejudiced in his
In State of Assam and Anr. v. Mahendra Kumar Das & ors.J dismissal of a
police sub-inspector in pursuance of a disciplinary enquiry held against him had been set aside
by the High Court on the ground that the enquiry officer had during the course of the enquiry
consulted the Superintendent of Police, Anti-Corruption Branch and had taken into
consideration certain material gathered from the AntiCorruption Branch, without making the
said material available to the sub-inspector. On appeal by the State of Assam this Court held
that it was improper for an enquiry officer during the conduct of an enquiry to collect any
material from outside sources and in not making that material available to the delinquent
officer. The Court observed that if the enquiry officer collects material behind the back of the
delinquent officer and such material is relied upon by the enquiry officer without being
disclosed to the delinquent officer, the enquiry proceedings would be vitiated. After making
these observations this Court recorded a finding that the enquiry officer had not taken into
consideration the material contained in the records of Anti-Corruption Branch, and therefore
failure to supply the material of the AntiCorruption Branch to the delinquent officer was of no
consequence and it could not vitiate the enquiry. The Court set aside the order of the High
Court on the finding that there had been no violation of principles of natural justice.
during investigation and produced at the disciplinary enquiry in support of the charges framed
against the delinquent officer were not supplied, instead a synopsis of the statements had been
supplied to him. This Court upheld the order of the High Court on the finding that it was unjust
63
and unfair to deny the government servant copies of statement of witnesses recorded during
investigation and produced in support of the charges levelled against the government servant.
In the absence of the copies of the statement of witnesses the government servant could not
have opportunity of effective and useful cross-examine of the witnesses produced during the
disciplinary enquiry. The Court observed that synopsis of statement did not satisfy the
requirement of giving the government servant a reasonable opportunity. Same view was taken
by this Court in State of Uttar Pradesh v. Mohd. Sharif, as in that case also copies of the
statement of witnesses recorded at the preliminary enquiry were not furnished to the delinquent
government officer, as a result of which the delinquent officer could not effectively cross-
In Kashinath Dikshita v. Union of India & ors., this Court set aside the order of
dismissal of a police officer on the finding that during the departmental proceedings the officer
concerned was not supplied the copies of statements made by the witnesses at a pre-enquiry
stage and also the copies of the documents on which reliance was placed in support of the
charges, in spite of specific request being made by the officer. The Court held that the order of
dismissal was violative of Article 311 (2) in as much as the officer had been denied reasonable
opportunity of defending himself. While setting aside the order of dismissal the Court observed
that whether or not refusal to supply copies of documents or statements has resulted in prejudice
to an officer facing the departmental enquiry depends on the facts of each case. After making
this observation the Court examined the circumstances of that case and concluded that since 38
witnesses were examined against the officer and a large number of documents were relied upon
against him and the disciplinary authority should have supplied the copies of the statement of
witnesses recorded during the preliminary enquiry as we as the copies of the documents.
Wherein agreement with the view taken in this decision It is now well settled that if copies of
relevant and material documents including the statement of witnesses recorded in the
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preliminary enquiry or during investigation are not supplied to the delinquent officer facing the
enquiry and if such documents are relied in holding the charges proved against the officer, the
enquiry would be vitiated for the violation of principles of natural justice. Similarly, if the
statement of witnesses recorded during the investigation of a criminal case or in the preliminary
enquiry is not supplied to the delinquent officer, as that would amount to denial of opportunity
This question must be determined on the facts and circumstances of each case.
While considering this question it has to be borne in mind that a delinquent officer is entitled
to have copies of material and relevant documents only which may include the copy of
statement of witnesses recorded during the investigation or preliminary enquiry or the copy of
any other document which may have been relied in support of the charges. If a document has
no bearing on the charges or if it is not relied by the enquiry officer to support the charges, or
if such document or material was not necessary for the cross-examination of witnesses during
the enquiry, the officer cannot insist upon the supply of copies of such documents, as the
absence of copy of such document will not prejudice the delinquent officer. The decision of
the question whether a document is material or not will depend upon the facts and
In the instant case there is no denying the fact that a copy of paper No. 5 as
mentioned in the charge sheet was not supplied to the appellant and he was not permitted to
inspect the same. It appears that paper No. 5 was the report submitted by the Special Police
Establishment in respect of the criminal case of theft of coal, in which final report had been
submitted. After submission of final report in the criminal case disciplinary enquiry was
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initiated against the appellant. Paper No. 5 (the report) was, however, not considered or relied
by the enquiry officer in recording findings against the appellant. We have perused the copy of
the report of the enquiry officer furnished to the Court by the appellant but we do not find any
reference to paper No. 5 therein. The enquiry officer has not either referred to nor relied upon
that report in recording findings on the charges framed against the appellant. In this view the
report (paper No. 5) was not a material or relevant document and denial of copy of that
document could not and did not prejudice the appellant and there was no violation of principles
of natural justice. The appellant's grievance that in the absence of report he could not effectively
cross-examine Shri A.C. Das, Dy. S.P. Of Special Police Establishment, the investigating
officer, is not sustainable. A copy of the statement as recorded by the enquiry officer has been
placed before us by the appellant on a perusal of the same we find that Shri A.C. Das, was
cross-examined at length in detail. His examination-in-chief is confined to one page while his
cross-examination runs into six full scape typed pages. The appellant has failed to point out as
to how he was prejudiced. In our opinion the appellant was not handicapped in cross-examining
Shri A.C. Das, his grievance that he was not afforded reasonable opportunity of defence is
In view of the above discussion we hold that the High Court was right, in
holding that the enquiry was fair and the principles of natural justice had not been violated. The
course of assessment for the assessment year 1985-86, the Income-tax Officer found that there
were 8 cash credits to the extent of Rs. 3.50 lakhs on different dates of the accounting year.
The assessee filed confirmation letters from all the seven persons concerned. In the
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confirmation letter, the address of a creditor Sri A. Ravi Gopal was shown as 10-1 -462, West
Marredpalli, Secunderabad. The enquiries conducted by the Income-tax Officer through his
Inspector revealed that this house belonged to another gentleman Sri A.Rammohan and this
person denied any knowledge of the alleged creditor Sri A.Ravi Gopal. The Income-tax Officer
also found that Sri Ravi Gopal had opened a bank account with Bank of Tamilnadu on 8-4-
1985 with a sum of Rs. 50 and on 18-5-1985 the cheque issued by the assessee in repayment
of the debt at credit was encashed. This account was eventually closed on 19-11-1985. The
Income-tax Officer further found that the amount credited to his account was withdrawn by
self cheque and on the reverse side of the self cheque, Sri M. A.Qayyum, Accountant of the
assessee- firm, signed in token of having received cash of Rs. 2 lakhs from the bank. When Sri
Qayyum was examined on 1-3-1988, he stated that the amount withdrawn by him by signing
the self cheque was handed over to Sri G. Aravinda Reddy, partner of the firm. In a statement
recorded from Sri Aravinda Reddy, he stated that the sum of Rs. 2 lakhs received from Sri
Qayyum was immediately passed on to one Sri Udayabhanu, who is said to be an accountant
of Babu Khan Estate, and at that time the creditor was also present in the room. Sri Udyabhanu
is stated to have paid the money to the creditors. Though he said that he could remember the
face of this creditor, he was not sure whether he could produce the person. The Income-tax
Officer also found that the creditor was introduced to the bank by Sri M.A.R. Krishnam Raju,
Chartered Accountant. When the Income-tax Officer asked the assessee to produce Sri Ravi
Gopal, the assessee expressed inability to do so. During the course of assessment, certain
statements were recorded from the partner Sri Aravinda Reddy and also one or two witnesses
like Sri Qayyum, Accountant of the assessee-firm, and Sri M.A.R. Krishnam Raju, Chartered
Accountant who introduced one of the creditors, Sri Ravi Gopal, to the Bank of Tamilnadu.
On the above facts, the Income-tax Officer was of the opinion that the mere
filing of confirmation letters did not discharge the onus that lay on the assessee. When the
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credit is in the name of a third party, the burden still lay on the assessee to establish the identity
of the third party. The assessee did not prove the transaction by establishing the identity of the
creditor, the capacity of such creditor and the genuineness of the transaction. Since the assessee
did not know the whereabouts of this creditor, he could not produce him before the Income-tax
Officer. The Inspector's enquiries also showed that the above person did not stay at Marredpally
at any time. During the course of recording statement on 21-3-1988, the Managing Partner was
informed that on verification at the address given of Sri Ravi Gopal and another creditor Sri A.
Suman Kumar, it came to light that the above persons never stayed at Marredpally address
given by them. These and other creditors were also not produced before the Income-tax Officer
and so he was of the opinion that the assessee did not discharge the responsibility of proving
the credits in the names of the above persons. The Income-tax Officer also found that in the
repayments of loans said to have been made by the assessee to M/s Coastal Engineers, Sri G.
Subba Rao and M/s Everest Enterprises, the same were transferred to Moghal Estates with
whom the assessee had entered into an agreement to develop the land. Similarly, in respect of
the credit in the name of Sri N. Srinivas, the Income-tax Officer found that the assessee-firm
returned the amount on 12-2-1985, and on the same day when the amount was transferred, it
The learned First Appellate Authority ought to have deleted the additions made
by the Assessing Officer under Section 68 since the (Assessing Officer) failed to issue
summons and examine the lenders under Section 131 of the Act. This tantamounts
to violation of essential rules of Natural Justice and the additions ought to have been deleted
It was submitted before the Tribunal that a prayer was made before the Income-
tax Officer to compel the production of the creditors as the assessee has no power to compel
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their presence. It accordingly requested the Income-tax Officer to issue summons to the
creditors concerned so that they could be examined. It was submitted that it was the duty of the
Income-tax Officer to enforce the attendance of a witness if his evidence is material. The
Income-tax Officer did not carry out this exercise. While making the addition, the Income-tax
Officer relied upon, without affording a reasonable opportunity to the assessee of meeting or
explaining the materials contained in the Inspector's report and so the resultant assessment
would be violative of principles of natural justice. While it may be open to the Income-tax
Officer to collect materials behind the back of the assessee, if he desires to use the material so
collected against the assessee, the assessee must be informed of the material and must be given
adequate opportunity of explaining it. In the light of the above arguments, it was submitted by
the assessee's representative that since the enquiry report and the sworn statements were not
given to the assessee, the Inspector's report relied on in the order was not provided to the
assessee and the request for the issuance of summons under Section 131 was not complied
with, the order of the Income-tax Officer was violative of principles of natural justice. The
learned departmental representative, on the other hand, defended the Income-tax Officer's
the Assessing Officer in violation of the principles of natural justice should be set aside as void
ab initio thus deleting it or should the case be restored to the Income-tax Officer with direction
for redoing. From a perusal of the orders of both the learned Members, it appears that both the
Members agree that there is failure to observe the principles of natural justice. While so, the
learned Judicial Member goes on to give a direction to the Income-tax Officer to re-examine
the matter, whereas the learned Accountant Member stops short of such direction to the
Income-tax Officer and also does not say that giving such direction is wrong. Even after
declaring that the additions made without affording adequate opportunity to the assessee is
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liable to be quashed, he goes on to decide the issue on merits and gives his verdict for deletion
only after considering the merits and not before. In this view of the matter, we find that the
second question referred to us for our answer has two segments. The first segment is as to
whether the additions made in violation of the principles of natural justice should be set aside
as void ab initio. The second segment is as to whether the addition should be deleted or should
the case be restored to the Income-tax Officer with a direction for redoing. Now, let us take the
holding that violation of principles of natural justice makes the decision void as in every other
case ultra vires. The rules of natural justice operate as implied mandatory requirement, non-
The principles of natural justice have been elevated to the status of Fundamental Rights
guaranteed in the Constitution of India as is evident from the decision of the Full Bench of the
Honourable Supreme Court in the case of Union of India v. Tulsiram Patel AIR 1985 SC 1416
at 1460, holding that the principles of natural justice have thus come to be recognised as being
a part of the guarantee contained in Article 14 of the Constitution of India because of the new
and dynamic interpretation given by the Supreme Court to the concept of equality which is the
subject matter of that Article and that violation of principles of natural justice by a State action
is a violation of Article 14. In fact, the principles of natural justice, in the realm of life and
liberty, would ipso facto even be read into Article 21 of the Constitution because any procedure
which affected life or liberty had to be a just, fair and reasonable procedure which necessarily
meant the principles of natural justice. That is why these principles have been called as part of
the universal law, as part of the rule of law and have also been termed as fair play in action.
Audi alteram partem is one of the fundamental principles of natural justice. A quasi-judicial or
administrative decision rendered or an order made in violation of the rule of audi alteram
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partern is null and void and the order made in such a case can be struck down as invalid on that
score alone-Maneka Gandhi v. Union of India AIR 1978 SC 597, P. Gangadharan Filial v.
ACED [1980] 126 ITR 356 at pp. 365 to 367 (Ker.). In other words, the order which infringes
the fundamental principles, passed in violation of audi alteram partem rule, is a nullity. When
a competent court or authority holds such as order as invalid or sets it aside, the impugned
order becomes null and void-Navabkhan Abbaskhan v. State of Gujarat AIR 1974 SC 1471 at
1479. In the light of these decisions, we do opine that the addition made by the Assessing
Officer in violation of the principles of natural justice has to be set aside as void only in so far
as the additions by way of cash credits alone are concerned, which are separable from the other
additions in the order that are not challenged, and consequently becoming non est in the eye of
law.
There is a serious danger in making the ultra vires principle, or any part of it,
discretionary. Administrative inconvenience should not normally be allowed to distort the law.
This decision of the single Judge of the High Court of Kerala was confirmed by the decision
of a Division Bench of the same High Court in Addl. ITO v. Ponkunnam Traders [1976] 102
ITR 366.
In Tulsiram Patel' s case (supra) AIR 1985 SC 1416 the Five Member Constitution Bench of
the Supreme Court had to deal with the principles of natural justice and at para 95 at page
1460 Justice D.P. Madon for himself and on behalf of Y.V. Chandrachud, CJ., Tulzapurkar,
Pathak, JJ (Majority view) held that "the principles of natural justice have thus come to be
recognised as being a part of the guarantee contained in Article 14 because of the new and
dynamic interpretation given by this Court to the concept of equality which is the subject matter
of that Article. Shortly put, the syllogism runs thus: violation of anile of natural justice results
in arbitrariness which is the same as discrimination; where discrimination is the result of a State
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action, it is a violation of Article 14,: therefore, a violation of a principle of natural justice by
a State action is a violation of Article 14. Article 14, however, is not the sole repository of
the principles of natural justice. What it does is to guarantee that any law or State
action violating them will be struck down. The principles of natural justice, however, apply not
only to legislation and State action but also where any Tribunal, authority or body of men, not
coming within the definition of 'State' in Article 12, is charged with the duty of deciding a
matter. In such a case, the principles of natural justice require that it must decide such matter
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CHAPTER - 6
CONCLUSION
6.1 Conclusion
In a social welfare State like India, the State has to perform a manifold function
to realize the constitutional dream of social, political and economic justice. ‘Justice’ is an ideal,
which cannot be attained without following the due process in every state action. Thus, every
judicial, quasi-judicial and administrative authority should adopt such practices and arrive at
decisions which are fair, just and reasonable. Principles of natural justice are the guiding
independent, impartial and unbiased adjudicatory body, guided by fair procedure and
with rapid growth of state liability and civic needs of the people. Under Article 14 & Article
21 of the Constitution of India, the articles firmly deal with the principles of natural justice.
The violation of principles of natural justice shall results in arbitrariness; therefore, violation
of natural justice is also a violation of Right to Equality under Article 14. Natural Justice has
its foundation on good conscience and human values that follows a fair procedure. If the state
doesn‟t discharge its function in a just and fair manner the Rule of Law would lose its validity.
action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is
there ground to be frightened of delay, inconvenience and expense, if natural justice gains
access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or
sophisticated abstraction. Its essence is good conscience in a given situation; nothing more-but
nothing less. “In modern times opinions have sometimes been expressed to the effect that
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natural justice is so vague as to be practically meaningless. But I would regard these as tainted
by the perennial fallacy that because something cannot be cut and dried nicely weighed or
measured therefore it does not exist. The idea of negligence is equally insusceptible of exact
definition, but what a reasonable man would regard as fair procedure in particular
circumstances and what he would regard as negligence in particular circumstances are equally
capable of serving as tests in law, and natural justice as it has been interpreted in the court is
Essentially, it can be seen that earlier the principles of natural justice were
applied to courts of law only but later on it has extended, to the tribunals exercising quasi-
judicial functions and then to the statutory authorities and the administrative authorities, who
have upon them, the responsibility of determining the rights, liberties and obligations of the
people.
no process without affording both the parties a chance of fair hearing before an impartial,
rational judge. This is necessary for a society, which is governed by rule of law; and the
principles of natural justice promote the notion of the rule of law. The principles of natural
justice are great humanizing tools with endows law with fairness and secure justice to prevent
miscarriage of justice.
The main objective behind the reconciliation between the inclusion and
natural rights of being heard and fair procedure as well as the public interest. Larger public
interest is to be allowed to override the individual’s interest where the justice demands. Thus,
exclusion of natural justice should not be readily made unless it is inevitable since the courts
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act on the presumption that the legislature intends to observe the principles of natural justice
and those Principles do not supplant but supplement the law of the land. Therefore, all statutory
provisions must be read, interpreted and applied so as to be consistent with the principles of
The fundamental objective behind the compromise between the inclusion and
natural rights of being heard and fair procedure just as the public interest. Bigger public interest
is to be permitted to supersede the individual's interest where the justice demands After the
conversation of the principles of natural justice it could be concluded that the Courts both in
India and England according to administrative proceedings made different exception to the
Be that as it may, these exceptions are altogether incidental and not indisputable,
each exception to be declared permissible or in any case solely after investigating the facts and
conditions of each case. The exceptions to the principles of natural justice in UK and India
mostly relate to administrative proceedings. The Courts in both these countries particularly in
India made different exceptions to the requirement of natural justice principles and procedures
considering different circumstances like time, place, and the captured risk, etc. winning at that
point of decision-making. It should be noticed that this load of exceptions is conditional and
not conclusive. They don't matter in similar way to situations which are not the same. They are
These rules can be adopted and changed by rules and statutory rules additionally
by the Constitution of the Tribunal which needs to choose a specific matter and the rules by
which such council is represented. Each action of the authorities to be viewed as an special
case should be examined by the Courts relying on the common circumstances. The cases where
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natural justice principles have been prohibited by suggestion recommend that the Courts have
acknowledged the doctrine despite the fact that the assembly has not adopted express words
with that impact yet those cases seem to depend so intensely on their specific circumstances
There are various exceptions to the rule of Natural Justice, courts in India have
applied the exceptions in various situations where the principles of Natural Justice can be put
aside. However, these exceptions are completely circumstantial and not definite in nature.
There are no documents or legislatures that regulate natural justice or its exceptions. The list
itself is not exhaustive in nature. Exceptions to the rule of natural justice can be studied from
other dimensions which may give us even more situations where other exceptions may arise.
In cases where natural justice principles are excluded by the judiciary, it implies
that the courts have adopted that particular notion regarding the dimension of the exception of
natural justice even if the law-making bodies have not adopted it. It is also an important point
to be noted that the principles of natural justice should not be overruled unless it is absolutely
necessary to do so. It is necessary to make sure that these exceptions don’t take over the actual
With this understanding of the debate between natural lawyers and legal
positivists in mind, let us turn to lawfulness conception of the virtue of justice. It might be
argued that my account of natural justice is radically inconsistent with the natural law tradition.
At the center of that tradition, the argument might go, is the idea that unjust laws are not true
From this, it might be argued that the natural law tradition is committed to the
fairness conception of the virtue of justice. That is, it might be thought that each human is
obligated to act in accord with her own first-order private judgments of fairness. If this were
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so, it would not establish that the idea of a virtue jurisprudence or of a natural virtue of justice
is inconsistent with the natural law tradition. Rather, it would establish that the versions of
virtue jurisprudence that are compatible with the natural law tradition are ones that incorporates
lawfulness conception of the virtue of justice can be reconciled with the natural law tradition.
There are two steps to this reconciliation. The first step focuses on the relationship between the
social norms and positive law. The second step focuses on the relationship between the status
the nomoi the social and legal norms of a given human society. Up to this point, I haven’t said
much about the relationship between social norms and legal norms. There are at least three
1. First, the content of a legal norm can be congruent with content of a social norm (or set
of norms).
2. Second, a legal norm can be supported by a social norm (or set of norms) that recognizes
the legitimate authority of institutions with the power to create, modify, or extinguish
legal rules.
3. Third, a legal norm can be inconsistent with a social norm (or set of norms), either
because of conflict between the content of the two norms or because the institutions
that are the source of the legal norm lack legitimate authority given relevant social
norms.
“an unjust law is not a true law.” On the lawfulness interpretation of the virtue of justice, it
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might appear that this slogan expresses a very odd idea. If we substitute “unlawful” for
“unjust,” we get “an unlawful law is not a true law.” Is the notion of an “unlawful law” an
oxymoron? Not necessarily, that expression could refer to a statute that was not enacted through
the processes prescribed by law or a statute that was inconsistent with the constitution. But this
is not what natural lawyers mean by their slogan. There is, however, another way in which we
can interpret the slogan, once we recall that the lawfulness conception of the virtue of justice
is based on the nomoi rather than positive law. On this interpretation, the phrase “true law”
refers to positive laws that stand in one of the two right relationships to social norms—either
congruence or socially recognized legitimate authority. Positive laws that have content that is
inconsistent with the content of social norms or that are promulgated by institutes that lack
lawfulness conception of the virtue of justice can incorporate the natural law slogan that an
unjust law is not a true law. This sense derives from the notion that it is a condition for a norm
to count as a nomos that the norm must be such that it could be internalized by any fully virtuous
human. That is, the norm must be internalizeable by any fully virtuous agent—in possession
of the intellectual and moral virtues. For short, we can might say that for a norm to be a nomos
it must be such that it could be embraced by the phronimoi—by those humans in full possession
of the human excellences. Social norms or positive laws that clearly hinder rather that enable
human flourishing could not be internalized by a fully virtuous agent who has grasped the telos
From virtue ethics, we have developed the idea of virtue jurisprudence. From natural goodness,
we have derived the notion of natural justice. And from natural justice, we have come around
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to natural law. Let me conclude with a confident but controversial assertion. This movement,
from virtue ethics to a distinctive interpretation of the natural law tradition is no coincidence,
no mere “happy accident.” Thinking about natural law is rooted in Aristotle’s ethics. There is
a “natural” fit between natural law and natural justice—a match made explicit by the virtue of
justice as lawfulness. In normative legal theory, it is virtue jurisprudence that can provide the
best contemporary expression of the natural law thesis that there is an essential connection
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BIBLIOGRAPHY
Books
1. Prof. M.P.Jain, “Indian Constitutional Law”, 6th Ed, Lexis Nexis Butterworths
2. Durga Das Basu, “Case Book on Indian Constitutional Law”, 2nd Ed, Kamal Law
3. Dr.J.N.Pandey, “The Constitutional Law of India”, 49th Ed, Central Law Agency,
Allahabad, 2012.
4. P.M.Bakshi, “The Constitution of India”, 11th Ed, Universal Law Publishing Co.,
Websites
1. https://www.google.com
2. https://www.wikipedia.com
3. https://www. blog.ipleaders.in
4. https://www. Legalserviceindia.com
5. https://www.indiankanoon.org
6. https://articles.manupatra.com/
Articles
1. Allan ,T (revor) R.S (1998), “procedural Fairness and the duty of respect”, Oxford
Press.
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Multidisciplinary Science & Technology, Volume No. 3 , Issue No. 3, P.No 20-25,
March 2018.
Multidisciplinary Science & Technology, Volume No. 3 , Issue No. 4, P.No 26-30,
April 2018.
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