AN ANALYSIS OF THE FIRST PRINCIPLE OF NATURAL JUSTICE: NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA IN THE CONTEXT OF DOMESTIC ENQUIRY WITH REFERENCE TO RELEVANT CASES: RAHUL KUMAR

AN ANALYSIS OF THE FIRST PRINCIPLE OF NATURAL JUSTICE: NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA IN THE CONTEXT OF DOMESTIC ENQUIRY WITH REFERENCE TO RELEVANT CASES

Author; Rahul Kumar,

LL.M, Chanakya National Law University

ISSN: 2582-3655

ABSTRACT

Natural justice is not mentioned in the Indian Constitution, although it is seen as a necessary component of the administration of justice. Natural justice is a concept of common law that comes from the Latin word “jus natural,” which means “natural law.” Natural justice denotes a “natural sense of right and wrong” in layman’s terms, and it is synonymous with “fairness” in technical terms. In administrative discretion, natural justice has a wide range of applications. It tries to prevent administrative authorities from acting arbitrarily or inequitably towards citizens.

The concept of natural justice was originally limited to judicial proceedings, but with the advent of the welfare state, administrative authorities’ powers have greatly expanded, making it impossible for the law to determine the fair procedure to be followed by each authority when adjudicating any disputes or quasi-judicial proceedings.

As a result, courts have created a remedy by setting a standard that administrative officials must follow when exercising their powers and performing their duties. Administrative authorities, as law enforcers, must bring advantages to the people, but this goal cannot be achieved without effective control over the powers granted to them.

As the natural justice concept includes two principles but in this paper, only one principle is discussed which is ‘Right against bias.’ Its meaning, concept, background, and types of bias are discussed along with relevant cases.

INTRODUCTION   

Natural Justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general „duty to act fairly‟. What is required to fulfill this duty depends on the context in which the matter arises. There are two rules that natural justice is concerned with. These are the rule against bias (nemo judex in causa sua) and the right to fair hearing (audi alteram partem).

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 while imputed bias, once shown, will result in a decision being void without the need for an 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 has been is that the differences between these two tests are largely semantic and that they operate similarly. The real likelihood test centers on whether the facts, as assessed by the Court, give rise to a real likelihood of bias. In R. v. Gough[1], the House of Lords chose to state the test in terms of a “real danger of bias”, and emphasized that the test was concerned with the possibility, not the probability of bias. Lord Goff of Chievely should look at the matter through the eyes of a reasonable man because the Court in cases such as these personifies the reasonable man”. However, the test in Gough has been disapproved of in some commonwealth jurisdictions. One criticism is that the emphasis on the Court’s view of the facts gives insufficient emphasis to the perception of the public. These criticisms were addressed by the House of Lords in Porter v. Magill[2]. The Court adjusted the Gough test by stating it to be “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. This case, therefore, established the current test in the UK to be one of a “real possibility of bias”.

On the other hand, the “reasonable suspicion test” asks whether a reasonable and fair-minded person sitting in Court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. Although not currently adopted in the UK, this test has been endorsed by the Singapore Courts. In the Singapore High Court decision in Tanf Kin Hwa v. Traditional Chinese Medicine Practitioners Board,[3] Judicial Commissioner Andrew Phang observed that the “real likelihood test” is in reality similar to that of reasonable suspicion. First, Likelihood is in fact “possibility”, as opposed to the higher standard of proof centering on “probability”. Secondly, he suggested that real in real likelihood cannot be taken to mean “actual”, as this test relates to apparent and not actual bias. He also observed that both the Court’s and the public’s perspectives are integral parts of a holistic process with no need to draw a sharp distinction between them. In contrast, in Re Shankar Alan s/o Anat Kulkarni, Judicial Commissioner Sundaresh Menon thought that there was a real difference between the reasonable suspicion and real likelihood tests. In his opinion, suspicion suggests a belief that something that may not be provable could still be possible. Reasonable suggests that the belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbor the suspicions in the circumstances even though the suspicious behavior could be innocent. On the other hand, “likelihood” points towards something is likely, and “real” suggests that this must be substantial rather than imagined. Here then, the inquiry is directed more towards the actor than the observer. The issue is the degree to which a particular event is not likely or possible. Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the Judge thinks there is a sufficient possibility of bias was a very significant point of departure. The “real likelihood test” is met as long as the Court is satisfied that there is a sufficient degree of possibility of bias. Although this is a lower standard than satisfaction on a balance of probabilities, this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often sub-conscious nature. The reasonable suspicion test, however, is met if the Court is satisfied that a reasonable member of the public could harbor a reasonable suspicion of bias.

Even the Court itself thought there was no real danger of this on the facts. As, of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether the position taken in Tang Kin Hwa or Shankar Alan is preferable.

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 direction 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 the common law rather than replace it.

Background: Natural Justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel to the origins of natural justice. 

Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the “natural law” of the Canonists, the medieval philosopher visions of an “ideal pattern of society” or the “natural rights” philosophy of the eighteenth century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia and the United Kingdom it has largely been replaced and extended by the more general “duty to act fairly”. Natural Justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo judex in causa sua or “no man can be a judge in his own cause”) and the right to a fair hearing (audi alteram partem or “hear the other side”).

The requirements of Natural Justice or a duty to act fairly depends on the context. In Baker v. Canada (Minister of Citizenship and Immigration)[4], the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision maker operates, the importance of the decision to the person challenging it, the person’s legitimate expectations, and the choice of procedure made by the decision maker. Earlier, the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Furthermore, preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect. In addition, whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. Finally, a right to procedural fairness only exists when an authority’s decision is significant and has an important impact on the individual[5].

Nemo debet esse judex in propria causa

The first principle of impartiality roughly translated into English means nobody shall be a judge in his own cause or in a cause in which he is interested. This principle is more popularly known as the Doctrine of Bias. That is the authority sitting in judgment should be impartial and act without bias.[6] To instill confidence in the system, justice should not merely be done but seen to be done. 

Bias: Pecuniary Bias                        

Bias can be categorized into three categories namely pecuniary, personal and official. It is obvious that the decision of the adjudicator would be affected if he is having a pecuniary interest in the subject matter of the proceedings.  In Mohapatra v. State of Orissa[7], it was held that when the author of a book was a member of the committee set up for the selection of books, and his book was also under consideration by that committee, the possibility of bias could not be ruled out and the selection by that committee cannot be upheld.  Thus, in addition to the direct personal interest, the test laid down by the court is to consider the real likelihood of bias. In other words, the probability of bias is sufficient to invalidate the right to sit in judgment and there is no need to have the proof of actual bias.      

 Personal bias may arise out of friendship, relationship, professional grievance, or even enmity.  Here again likelihood of bias is to be given more credence than for the actual bias. It is difficult to prove the state of mind of a person. Therefore, we have to see whether there is reasonable ground for believing that he was likely to have been biased. For example, in Tata Motor Challenge v. Government of West Bengal, on the constitutional validity of the Singur Land Rehabilitation and Development Act, Justice Saumitra Pal recused himself from the case, citing that he knew some of the people in relation to the case personally.     

Official Bias 

The third type of bias, namely, official bias may arise in cases where an administrator who enunciates and then has to carry out an official policy, is entrusted with the duty of hearing objections from the concerned persons as to the implementation of the policy.  Here the general rule is that the bias that may be said to be likely to arise because the adjudicator has a general interest in the subject matter and administration of the policy in his official capacity, would not operate as a disqualification. The mere fact that the Registrar of Cooperative Societies has a power of general supervision over all Co-operative Societies, does not amount to inherent bias in him so as to disqualify him for the purpose of acting as an arbitrator or judge under Section 18 of the Rules made under the Co-operative Societies Act 1912 to decide disputes between members of a Society.[8] Thus, no official bias arises while senior officers adjudicate the Customs or Central Excise or Service Tax cases even though the investigations in the case might have been conducted by their subordinates.       

In the words of the Supreme Court of India, where a body or authority is characteristically administrative, the principles of Natural Justice are also liable to be invoked if the decision of that body or authority affects individual rights or interests, and having regard to the particular situation it would be unfair for the body or authority not to have followed a reasonable opportunity to be heard.[9] Any decision which infringes upon the principles may be set aside by the superior judicial authorities. The rights enjoined by these principles are the right to be heard impartially; the right to have the notice of the offense and the right to respond to the charge. These are procedural safeguards to ensure the dispensation of justice in a fair manner. However, it has to be accepted that law is a dynamic and living field and merely cling on to the procedures or strict observance of the rules does not produce a fair and satisfactory outcome unless the authorities concerned act judiciously.[10]

The term Natural Justice has not been defined in any enactment, rules, or regulations. Eminent Jurists and courts in England and India have defined and explained the concept of Natural Justice in a series of decisions. It is said that Natural Justice is justice in deed and in truth while legal justice is justice declared and recognized by law and enforced by courts in accordance with the procedure established by law. Natural Justice is justice based on human values and good conscience following a just and fair procedure. Legal justice is based on the technicalities of law following the procedure established by law. Principles of Natural Justice are principles analogous to principles of equity.

From the turn of the 7th-century eminent judges of the time maintained the supremacy of natural justice over the statutory law of Parliament. It was generally felt that the law of nature is that which God at the time of the creation of the nature of man, infused into his heart, for his preservation and direction; and this is lex seterna (eternal law) the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of god a long time governed before the law was written by Moses who was the first reporter or writer of law in the world. Principles of natural justice (Liberty Oil Mills V.Union of India) are implicit in administrative action even if there is no express statutory provision in that regard. The applicability of principles of natural justice would depend upon the particular situation, facts and circumstances of each case. Non-compliance with the principle (C LTripathi V. State Bank of India) would come into play only where real prejudice is caused. Principles of natural justice are not statutory rules. They are flexible and can be modified and adopted by statutes and statutory rules. The rules of natural justice require that a person or body exercising judicial or quasi-judicial functions must act in good faith, listen fairly to both sides, and to give a fair opportunity to the parties litigating, to present their cases.

Scope and Objects:    

Principles of Natural Justice are the rules laid down by courts for the purpose of protecting the right of an individual against the adoption of arbitrary procedures in determining questions affecting his rights by a judicial or quasi-judicial authority (Pitchaiah V. Andhra University). The principles of natural justice are easy to proclaim, but their precise extent is far less easy to define. The rule against bias is one thing. The right to be heard is another. These two rules are characteristic of what is often called ‘natural justice’. They are twin pillars supporting it. They have been put into two words- Impartiality & Fairness. The Principles of natural justice are considered to be more important to ensure justice to the workman whose conduct is being inquired into. Hence, it is essential to understand its scope and extent and implications for purpose of the domestic inquiry. We come across new cases every day but the basic structure of the machinery entrusted with the task of holding a departmental inquiry and coming to a decision remains the same. Therefore, the employer should give proper attention to this aspect of the disciplinary action so that pitfalls on this score could be avoided.  

PRINCIPLES OF NATURAL JUSTICE IN DOMESTIC ENQUIRY

The maxim means that no person can be a judge in his own cause. The fundamental rule of natural justice in departmental proceedings is that the disciplinary authority should be impartial and free from bias. It must not be interested in or related with the cause which is being decided by him. The personal interest can be in the shape of some pecuniary benefit or some personal relation or even ill-will or malice or any official bias against any of the parties. The real test is whether a man of ordinary prudence would have a feeling of bias. This follows from the principle that justice should not only be done but should manifestly seem to be done. In an important case of Mukhtar Singh V. State[11], it was held that the hearing must be by an impartial tribunal, i.e. by a person who is neither directly nor indirectly interested in the case. One who has any interest in the litigation is already biased against the party concerned and the findings of such authority are liable to be struck down.

In the industrial dispute cases, the question of bonafide or malafides of the employer carries importance. If it is shown that an employer was actuated by a desire to victimize a workman, that may in some cases introduce an infirmity in the order of the disciplinary authority. This is another reason why the inquiry in industrial matters should be held with scrupulous regard to the rules of natural justice. It should be noted that the inquiry officer cannot be the person who is himself a complainant or is related to any of the witnesses or the concerned employee or has ill-will or malice against any of the person concerned. Inquiry officer should act like a judge but he is not a judge. He takes administrative action with a judicial approach, which requires the administration of justice according to rules, following a just and fair procedure. He shall be independent, impartial, fair and objective. A person with a foreclosed mind or a person who has prejudged the issue or predetermined to punish the delinquent should not act as an inquiry officer. Similarly, a person who is a complainant, or witness, or prosecutor cannot act as a judge.

A Constable in the Utter Pradesh Police Force was placed under suspension on 15th March 1948 as he was suspected to be responsible for the creation of a forged letter purporting to have been issued selecting him for training in the Police Training College. A Departmental inquiry was started against the respondent and Shri B.N.Bhalla, the District Superintendent of Police held the trial and found him guilty, and passed an order of dismissal against him. Departmental appeal and revision were dismissed. The employee challenged the action before the Supreme Court. It was found that  Sri B.N.Bhalla, who presided over the trial, also gave his own evidence in the proceedings at two stages and had thus become disqualified from continuing as the inquiry officer, as he was found to be biased against the respondent. The examination of Shri Bhalla became necessary to contradict a witness who denied at the inquiry a statement he had made earlier in the presence of Shri Bhalla. Accordingly, Shri Bhalla had his testimony recorded by a Deputy Superintendent of Police. The Supreme Court, while laying down that a person cannot act both as a Judge and witness, observed as follows.

The District Superintendent of Police examined a certain witness in the course of the inquiry. It seems that the witness’s evidence was considered a vital link in the chain of evidence against the respondent. The Dist. Superintendent of Police reached the conclusion that the witness had turned hostile. He may have been right about that, but he also considered it necessary to refute this evidence and make good the lacuna by bringing other material on record. Apparently, no other witness was available. So, the Dist. Superintendent of Police who seems to have personal knowledge about the facts, stepped down from the Bench and got his testimony recorded by another authority, once before charge and again after charge and each time after that was done, stepped back from the Bench in order solemnly to decide whether he should believe his own testimony in preference to that of the witness who, in his judgment, had committed perjury and gone back on the truth.

The court added that it hardly matters whether this was done in good faith or whether the truth lay that way because the spectacle of a Judge hopping on and off the Bench to act first, as judge, then as a witness, then as a judge again to determine whether he should believe himself in preference to another witness, is startling, to say the least. It would doubtless delight the hearts of a Gillbert and Sulivan Comic Opera audience but will hardly inspire public confidence in the fairness and impartiality of departmental trials; and certainly not in the mind of the respondent. Even before the constitution, departmental trials were instituted to instill a sense of security in the services and inspire confidence in the public about the treatment accorded to Government servants” (State of Uttar Pradesh V.Mohammed Nooh).

In another case (S.Parthasarathi V. State of Andhra Pradesh)the appellant was posted as Office Superintendent in the Information and Public Relations Department and the inquiry against him was conducted by the Deputy Director, Sri Manvi under whose immediate control he was working. The charges were held as proved and finally the appellant was compulsorily retired. Against this order, he filed a suit and the trial court held the order null and void and awarded him damages. The High Court, however, quashed this order on an appeal by the State Government and the appellant then approached the Supreme Court for setting aside the order of the High Court alleging that the Inquiry Officer was biased against him.

Before the Supreme Court, a number of circumstances were highlighted regarding the alleged bias of Shri Manvi against him. It was found that on a number of occasions Shri Manvi had threatened him with disciplinary action and tried to harass him by ordering him to take charge of a large number of files in the Weeding Section without providing him with any clerical assistance for checking the files with the registers. Besides he also tried to get a certificate from the Superintendent of Hospital for Mental Illness, Hyderabad to the effect that Shri Parthasarathi was mentally unsound and the correspondence between him and the Superintendent indicated that he wanted to obtain the certificate so that he could dispense with his services on the ground of mental imbalance without having to hold an inquiry. The Supreme Court ruled that the cumulative effect of all these circumstances “creates in the mind a reasonable man the impression that there was a real likelihood of bias on the part of the inquiry officer. The Court observed that “the test of likelihood of bias which has been applied in a number of cases is based on the reasonable apprehension of a reasonable man fully cognizant of the facts.

The courts have quashed on the strength of the ‘reasonable suspicion of the party aggrieved without any finding that a real likelihood of bias in fact existed. The test of “real likelihood” and “reasonable suspicion” is really inconsistent with each other. The reviewing authority must make a determination on the basis of the whole evidence before it whether a reasonable man would in the circumstances infer that there is a real likelihood of bias. The Court must look at the impression that other people have. This follows from the principle that justice must not only be done but seem to be done. If right-minded persons would think that there is a real likelihood of bias on the part of an inquiry officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Inference or conjuncture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The court will not enquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision.

In another case, the charged employee was working as a Senior Clerk in the Office of the Chief Commercial Superintendent, Northern Railway, Varanasi. On 22nd May 1982, the Senior Commercial Officer wrote a letter calling upon him to offer his explanation in regard to 12 charges of gross indiscipline. The appellant submitted his explanation on 09th June 1982. On the very next day, the Deputy Chief Commercial Superintendent served a second notice saying that the explanation was not convincing and that he should explain why deterrent disciplinary action should not be taken against him. The appellant offered another explanation on 14th June 1982 and the very next day, the Deputy Chief Commercial Superintendent passed an order dismissing him from service on the ground that he was not fit to be retained in service.[12]

The Supreme Court in the above case observed that 7 of the 12 charges refer to the appellant’s misconduct in relation to the Deputy Chief Commercial Superintendent. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry. The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and the Deputy Chief Commercial Superintendent, was speaking the truth, was decided by the Deputy Chief Commercial Superintendent himself.

In the case of Sunil Kumar Banerjee V. State of West Bengal[13] the preliminary report of the investigation was considered by the Vigilance Commissioner with a view to recommending to the disciplinary authority whether a disciplinary proceeding should be instituted or not. The report of the investigation was referred by the Vigilance Commissioner to the Commissioner of Departmental Enquiries of the Vigilance Commission for his views and for the preparation of draft charges if the institution of disciplinary proceedings was to be recommended. The Commissioner expressed his opinion that there was material for framing fresh charges and he also prepared the draft charges and forwarded them to the Vigilance Commissioner. The Vigilance Commissioner in turn forwarded the papers to the Government who finally decided to institute disciplinary proceedings against the appellant. Thereafter the same Commissioner for Departmental Enquiries was appointed as Enquiry Officer. The Supreme Court held that from the circumstances that he considered the report of investigation with a view to finding out if there was material for framing charges and prepared draft charges, it cannot possibly be said that when he was later appointed as an Enquiry Officer he constituted himself both as prosecutor and judge and that anybody who is familiar with the working of criminal courts will at once realize that there is nothing strange in the same Magistrate who finds a prima facie case, frames the charges and trying the case also. The Supreme Court further held that it cannot for a moment be argued that the Magistrate having found a prima facie case at an earlier stage and having framed charges is incompetent to try the case, after framing charges.

Where members of the Public Service Commission directly participated in the selection of candidates and their own relatives have actually been selected with high ratings in the interview/ test, it was held that the selection suffers from bias and is liable to be struck down. It was held that in fair recruitment to the Civil Services the selection must not only be devoid of bias but there must also be no reasonable likelihood of bias. It is not necessary for the petitioners to prove beyond reasonable doubt the factum of bias or unfairness. It is sufficient if they can show a reasonable possibility or likelihood of bias and partisanship[14].

In S.Pratap Singh V. State of Punjab the appellant, Civil Surgeon under the Punjab Government was recalled from leave preparatory to retirement, placed under suspension and a departmental inquiry was instituted. He contended that the orders were void on the ground of malafide, having been passed at the instance of the Chief Minister, who was hostile to him. The Supreme Court observed that the functionary who took action and on whose instructions the action was taken against the Civil Surgeon under the Punjab Government was undoubtedly the Chief Minister and if that functionary was actuated by malafide in taking that action it is clear that such action would be vitiated. In the circumstances, the dominant motive which induced the Government to take action against the appellant was not to take disciplinary proceedings against him for misconduct that it bona fide believed he had committed but to wreak vengeance on him for incurring the wrath of the chief minister. The Court held that the impugned orders were vitiated by malafide, in that they were motivated by an improper purpose that was outside that for which the power of discretion was conferred on the Government and the orders are therefore set aside

The Andhra Pradesh High Court in M.Koteswara Rao V. Sr.Manager after discussing the case law on the subject laid down the following principles in regard to bias –

  • Every Judge, authority, arbitrator, or a body or person having the power to decide, disputed questions of law and facts shall display fair play in action.
  • He acquires disqualification if he has an interest (either pecuniary or otherwise) in the proceedings or conducts in a biased manner so as to create real likelihood of bias.
  • The bias need not be established as a fact. It is sufficient if there was a real likelihood of bias or bona fide suspicion of bias or there was a substantial possibility of bias.
  • The measuring rod of actual bias or real likelihood of bias is that a reasonable and fair-minded person adequately apprised of all relevant facts might reasonably and bonafide think that there was a real likelihood of bias and that bias cannot be inferred on vague suspicions of whimsical, copious and unreasonable persons.
  • Bias may be apparent or inherent in the proceedings and there must be reasonable evidence to satisfy that there was a real likelihood of bias.
  • Bias may arise under various circumstances viz., pecuniary, affinity, consanguinity, friendship or hostility, subordinate status etc. It may be personal bias or departmental or administrative bias or objectionable bias (e.g. prejudging the issue).
  • Principles of waiver apply to the rule against bias provided the objection is taken as soon as the party prejudiced knows the facts which entitle him to object. However, in cases where even though true facts are known, but if he establishes that he was unaware that he was entitled to take objection, the principle will not apply.
  • The principle has no application where the authority discharges the function under a statute or when the doctrine of necessary is invoked.
  • The proceedings or decisions afflicted with bias are wholly void.

In the case of Anandram Vaswani V. Union of India[15], it was observed by the court that in the domestic inquiries, the inquiry officer, as well as the witnesses, were from the same establishment, which was sufficient to raise serious apprehension in the mind of the charge-sheeted employee. If some sort of legal help may be provided to the employee, the balance which is tilted in favour of the management may tilt partially towards the delinquent. The court further observed that the justice should not only be done, but should appear to be done, and this is not a euphemism for courts alone, it applied with equal vigour to all those who were responsible for fair play. 

RIGHT TO A FAIR HEARING:  

In general: It has been suggested that the rule requiring is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both sides should be heard. The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to prevent their own cases.

Besides promoting an individual’s liberties, the right to a fair hearing has also been used by Courts as a base on which to build up a fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised. However, in the United Kingdom prior to Ridge v. Baldwin, the scope of a right to a fair hearing was severely restricted by case law following Cooper v. Wandsworth Board of Works. This was seen in cases such as Local Government Board v. Arlidge and R. v. Leman Street Police Station Inspector. In R. v. Electricity Commissioners, Lord Atkin observed that the right only applied where decision-makers had „the duty to act judicially‟. In natural justice cases, this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a „superadded‟ express obligation to follow a judicial-type procedure in arriving at the decision.

In Ridge v. Baldwin, Lord Reid reviewed the authorities extensively and attacked the problem at its root by demonstrating how the term judicial had been misinterpreted as requiring some additional characteristic that the power affected some person’s rights. In his view, the mere fact that the power affects rights or interests is what makes it “judicial” and so subject to the procedures required by natural justice. This removal of the earlier misconception as to the meaning of “judicial” is thought to have given the judiciary the flexibility it needed to intervene in cases of judicial review.

Principles of Natural Justice Not applicable in Certain Situations          

There are, however, certain exclusions of natural justice. Principles of natural justice do not operate in areas where they are statutorily excluded, whether expressly or by necessary implication (Union of India v. J. N. Sinha)[16]. Similarly, for legislation by Parliament, no principle of natural justice is attracted provided such legislation is within the competence of the legislature (Charan Lal  Sahu)[17].  Even if the person entitled to adjudicate may be disqualified on the ground of bias,  his decision will not be set aside on that ground if there was no other person competent under the statute or authorized thereunder to adjudicate on that matter.  But such a necessity must be real as observed in J. Mohapatra.[18] When the facts are all admitted or undisputed, the decision cannot be assailed on the ground of failure to permit cross-examination (Tripathi v. S.B.I)[19].  Where disclosure of the information leading to order may defeat the object of the statute under which the order is passed, the failure to furnish that information would not invalidate the order (S.P. Gupta AIR)[20]. Thus the identity of the informer or source of information is not required to be disclosed.  Lastly, where immediate preventive action is to be taken, especially in matters such as national security, anti-smuggling, public order, etc., failure to give notice or to grant a hearing before passing the order would not amount to failure of natural justice, such requirement would stand excluded by implication (Menaka Gandhi)[21]

Courts have examined the question of whether the failure of natural justice at the equity stage be cured at the appellate stage and in Farid Ahmed v. Ahmedabad Municipality[22].  Supreme Court has held that when the first authority did not observe natural justice in its proceedings, the fact that appellate or revisionary authority observed natural justice, does not cure the initial defect. If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as instead of a  fair trial followed by an appeal, the procedure is reduced to unfair trial followed by a fair trial” (Administrative Law by Wade). 

 Generally, all the Courts have held that a decision arrived at without following natural justice is void (Suresh vs. State)[23]; (Jawala Prasad vs. State)[24], etc.  However, in Swadeshi Cotton Mills[25], Supreme Court refused to quash the order of the Government to take over the mills (though the order was passed without following natural justice) and merely directed the Government to give a hearing.  Thus, though theoretically, an order passed in violation of natural justice may be void; it would yet be effective in its scope and effect unless somebody entitled to question the same does so and have it set aside or declared void.

CONCLUSION

Nobody should be a judge in his own cause or the inquiry officer should not be having any interest in the case. The inquiry officer should not be related to the case either as a complainant, guilty person, witness or investigating officer. He should not have an interest in the matter. The guilty person or the complainant should not be his relative or the subject matter of the allegation should not be related to the inquiry officer.

  • The inquiry officer should be duly appointed by the disciplinary authority in accordance with the applicable service rules or standing order.
  • The charge-sheeted employee is informed sufficiently in advance say at least a week; clearly of all the allegations reported against him and how such allegations amount to misconduct as per the relevant service rules/ standing order by issuing a charge sheet duly signed by the disciplinary authority.
  • The charge-sheeted employee should be supplied in advance with a list of documentary evidence to be used against him and be allowed to examine such documents.
  • The date and place of inquiry, name of the inquiry officer, the right of the charge-sheeted employee to be defended in the inquiry by defense representative (another employee having expertise in the matter) and other information about the inquiry should be informed to the charge-sheeted employee sufficiently in advance.
  • If the management side is represented by a law officer, HR Manager, or lawyer in the inquiry, please consider allowing the employee also to avail the assistance of a lawyer as defence representative.
  • The charge-sheeted employee and his defence representative should be allowed leave from work to attend the inquiry. The inquiry should be held nearer to the workplace of the employee or he is paid a traveling allowance to attend the inquiry.
  • The charge-sheeted employee should be informed about his right, to have defence representative, to bring evidence/ witnesses in support of his cause, to cross-examine the evidence and witness of the management to defend himself in the inquiry.
  • The entire inquiry proceedings should be conducted in accordance with the provisions of service rules or standing orders.
  • The inquiry officer and disciplinary authority should discharge their duties in good faith without malafide intentions.
  • All the inquiry proceedings should be conducted in the presence of the charge-sheeted employee unless he decides to boycott/ absent.
  • Inquiry officer should prepare his report of findings in writing. The report should be based on the facts derived from the examination of evidence/witnesses in the inquiry and be submitted to the disciplinary authority.
  • Disciplinary authority should forward a copy of the report to a charge-sheeted employee asking therein to give his views/ representations if any about the report.
  • If the disciplinary authority records his own findings by disagreeing partially or fully with the report of enquiry officer he should provide a copy of the new findings to the charge-sheeted employee asking therein to give his views/ representations if any against the new findings.
  • Employee should be given an opportunity of being heard in the matter by the disciplinary authority on the quantum of punishment to be imposed.
  • The quantum of punishment should be commensurate with the nature of the misconduct.

One thing should be noted. Inference of exclusion of natural justice should not be readily made unless it is irresistible, since the courts 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 natural justice. Traditionally natural justice has been confined to the two rules which are:

  • That a man may be judge in his own cause;
  • That a man’s defense must always be fairly heard.   

It has not, as yet, including a general requirement that reasons should be given for decisions. On the other hand, there are isolated judicial statements that natural justice requires decisions to be based on some evidence of probative value. The courts are now so conscious of natural justice that they may well extend its scope in both these directions.


[1] [1993] 2 All ER 724.

[2] [2001] UKHL 67 (13 December 2001).

[3] [2005] SGHC 153.

[4] [1999] 2 S.C.R. 817.

[5] Knight v. Indian Head School Division. No. 196.

[6] I.P Massey, Administrative law pg189 (EBC, 9th edn., 2017).

[7] (AIR 1984 S.C. 1572).

[8] Viraj v. State of Orissa 1967 SC 158.

[9] Supra note 6 at 205.

[10] State of Punjab v. K.R.Erry 1973 (2) SCR 405.

[11] AIR 1957 ALL 297.

[12] Arjun Chowbey V. Union of India, 1984 AIR 1356.

[13] 1980 AIR 1170.

[14] Subhash Chandar Sharma v. State of Haryana

[15] (1983) 2 LLN 510.

[16] AIR 1971 S.C. 40.

[17] AIR 1990S.C. 1480.

[18] AIR 1984 S.C. 1572.

[19] . AIR 1984 S.C. 273.

[20] 1982 S.C. 149.

[21] AIR 1978 S.C. 597.

[22] AIR 1976SC 2095.

[23] AIR 1970 MP 154.

[24] AIR 1977 Raj 187.

[25] AIR 1981 SC 818.

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