Natural Justice :-

 

Natural Justice :-

 

 

Natural Justice-Applicability-It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.

The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons.(K.L.Tripathi vs SBI (1984) 1 SCC-43.

 

Principles of natural justice are implicit in administrative action even if there is no express statutory provision in that regard. It is not permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the Court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. Liberty Oil Mills v. Union of India, (1984) 3 SCC 465, 486.

 

 

Requirements of natural justice-Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions 01 proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representations on their own behalf; (b) or to appear at a hearing or enquiry (if one is held) ; and (c) effectively to prepare their own case and to answer the case (if any) they have to meet. K. I. Shephard v. Union of India, (1987) 4 SCC 431, 447:

 

 

Fair play in action is a facet of natural justice.-Natural justice has various facets and acting fairly is one of them. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. K. I. Shephard v. Union of India, (1987) 4 SCC 431, 447, 448:

 

 

Principles of natural justice applicable to administrative actions:-Even in emergent situations, compliance with at least minimum requirements of natural justice rules is a condition precedent to taking any action which effects adverse civil consequences such as loss of lively-hood-Post-decisional hearing not sufficient in such cases-Service Law. K. I. Shephard v. Union of India, (1987) 4 SCC 431, 443, 449:

 

Principles of natural justice when can be excluded-The rules of natural justice are not statutory rules. They do not apply in the same manner to situations which are not alike. They are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are flexible and can be adapted and modified by statutes and statutory rules  and also by the constitution of the Tribunal which has to  decide a particular matter and the rules by which such Tribunal is governed.

The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it.

The audi alteram partem rule can be excluded where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action; or where the nature of the action to be taken, its object and purpose and scheme of the relevant statutory provisions warrant its exclusion; or importing it would have the effect of paralyzing the administrative process or where the need for promptitude or the urgency of taking action so demands. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision.(UOI vs Tulsiram Patel(1985) 3 SCC-398.

 

 

 

Exclusion of natural justice rules –When permissible-There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time,place,the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The  hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.(Olga Tellis vs Bombay Municipal Corpn(1985) 3 SCC-545.

 

 

 

                                              

 

Requirements of natural justice-Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions of proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representations on their own behalf; (b) or to appear at a hearing or enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet. K. I. Shephard v. Union of India, (1987) 4 SCC 431, 447:

 

Fair play in action is a fact of natural justice.-Natural justice has various facets and action fairly is one of them. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens.  K. I. Shephard v. Union of Idia, (1987) 4 SCC 431,447, 448:

 

Applicability-Depends upon particular fact situation and circumstances of each case- Basic requirement of applicability. It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forty.

The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. K. L. Tripathi v. State Bank of India, (1984) 1 SCC 43, 58:

 

 

Principles of natural justice when can be excluded-The rules of natural justice are not statutory rules. They do not apply in the same manner to situations which are not alike. They are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are flexible and can be adapted and modified by statutes  and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it. The audi alteram partem rule can be excluded where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action; or where the nature of the action to be taken, its object and purpose and scheme of the relevant statutory provisions warrant its exclusion; or importing it would have the effect of paralyzing the administrative process or where the need for promptitude or the urgency of taking action so demands. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision. Union of India v. Tulsiram Patel, (1985) 3 SCC 398, 477, 479:

 

 

 

Exclusion of natural justice rules –when permissible-There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being beard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.(Olga Telis vs Bombay Municipal Corpn.(1985) 3 SCC-545.

 

 

 

Principles of natural justice are implicit in administrative action even if there is no express statutory provision in that regard. It is not permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the Court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. Liberty Oil Mills v. Union of India, (1984) 3 SCC 465, 486.

 

 

Administrative actions without any requirement to act judicially-Public administration cannot be carried on in a spirit of judicial detachment. There is a very wide range of discretionary administrative acts not importing an implied duty to act judicially though the act must be done in good faith to which legal protection will be accorded. But the administrative act de hors judicial flavor does not entail compliance with the rule against interest and likelihood of bias. The administrative authority is free to act in its discretion if he deems necessary or if he or it is satisfied of the immediacy of official action on his or its part. His responsibility lies only to the superiors and the Government. The power to act in discretion is not power to act ad-arbitrarium. It is not a despotic power, nor hedged with arbitrariness, nor legal irresponsibility to exercise discretionary power in excess of the statutory ground disregarding the prescribed conditions for ulterior motive. If done it brings the authority concerned in conflict with law. When the power is exercised mala fide it undoubtedly gets vitiated by colourable exercise of power. State of Bihar v. P. P. Sharma, 1992 Supp (1) SCC 222, 259, 260, 261:

 

 

 

Applicability of the principles of Natural Justice-Test-Natural justice cannot be placed in a strait-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case.(Maharashtra State Financial Corpn. vs Suvarna Board Mills(1994) 5 SCC-566.

 

Natural Justice –Basic facets of –Requirements of natual justice can be moulded in such a way as to take care of two basic facets of this principleL1) to make known the nature of accusation; and (2) to give opportunity to state the case. Natural justice is after all “no unruly horse, no lurking land mine”. Its unnatural expansion without reference to these realities can be “exasperating”.(Shiv Sagar Tiwari vs UOI(1997) 1 SCC-444.

 

 

Review can be made by the same authority or if he is not physically available, by his successor-Where principal authority’s power has been delegated, principal cannot review the order of the delegate since it was not the principal who passed that order-But when principal has power of review under the statute, delegate cannot be denuded of that power on the principle that delegate personifies the principal and therefore all the powers attributable to the personality of the principal which the delegate personifies will be exercisable by him.(State of Orissa vs Commr.of Land Records &   Settlement(1998) 7 SCC-162.

 

 

 

 

Exception-“Useless formality theory”-Applicability of, held, may depend on the facts of a particular case-The “useless formality” theory is an exception. Apart from the class of cases of “admitted or indisputable facts leading only to one conclusion” as discussed in S.L.Kapoor vs Jagmohan(1980) 4 SCC-379 there has been considerable debate on the application of that theory in other cases. In the ultimate analysis the applicability of the theory would depend on the facts of a particular case.(Aligarh Muslim University vs Mansoor Ali Khan (2000) 7 SCC-529.

 

Object of the doctrine of natural justice, held,is not only to secure justice but to prevent miscarriage of justice-The doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. In Baldwin case the doctrine was held to be incapable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. A question arises as to who is a reasonable man. In India, a reasonable man cannot but be a common man similarly placed.

While in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. Judicial review of the adequacy or inadequacy of evidence is not permitted but in the event of there evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person.

It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. The judicial process itself embraces a fair and reasonable opportunity to defend though the same is dependent upon the facts and circumstances of each individual case. The facts in the present matter under consideration are singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste.

The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn there from-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and in that regard the Loc bail case was rightly decided.  (Kumaon Mandal Vikas Nigam Ltd.Vs.Girja Shankar Pant(2001) 1 SCC-182.

 

 

 

 

 

 

Applicability to legislative function-principles of natural justice, held,not applicable unless compliance with provided for in the statute before issue of notification-In case of legislative act of legislature, no question of application of rule of natural justice arises.However,in case of subordinate legislation, the legislature may provide for observance of principles of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. Where the legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principles of natural justice before issue of a declaration either under Sec.3 or Sec.4 of the Punjab Panchayati Raj Act, the residents of the area cannot insist on an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority.

In the present case, the provisions of the Act do not provide for any opportunity of hearing to the residents before any area falling under a particular Gram Sabha is excluded and included in a differential of opportunity of hearing before issue of declarations under Ss.3 and 4 of the Act respectively.(State of Punjab vs.Tehal Singh (2002) 2 SCC-7.

 

 

Natural justice-Applicability-Basic principles to be moulded to suit peculiar situations-Exceptions to applicability restated-It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as a rule of universal obligation that all administrative acts or decisions affecting rights of individuals must comply with the principles of natural justice and the person of persons sought to be affected adversely must be afforded not only an opportunity of hearing but a fair opportunity of hearing. The state must act fairly just the same as anyone else legitimately expected to do and where the State action fails to satisfy the test it is liable to be struck down by the courts in exercise of their judicial review jurisdiction.

The caution of associating rules of natural justice with the flavor of flexibilities would not permit the courts applying different standards of procedural justice in different cases depending on the whims or personal philosophy of the decision-maker. The basic principles remain the same; they are to be moulded in their application to suit the peculiar situations of a given case, for the variety and complexity of situations defies narration. That is flexibility. Some of the relevant factors which enter the judicial process of thinking for determining the extent of moulding the nature and scope of fair hearing and may reach to the extent of right to hearing being excluded are: (i) the nature of the subject-matter, and (ii) exceptional situations. Such exceptionality may be spelled out by (i) the need to take urgent action for safeguarding public health or safety or public interest, (ii) the absence of legitimate expectation, (iii) by refusal of remedies in discretion, (iv) doctrine of pleasure such as the power to dismiss an employee at pleasure, and (v) express legislation. There is also a situation which Prof. Wade and Forsythe term as “dubious doctrine” that right to a fair hearing may stand excluded where the court forms an opinion that a hearing would make no difference. Utter caution is needed before bringing the last exception into play. State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731

 

 

Natural Justice-Concept, meaning, object, scope and applicability, stated-The expressions “natural justice” and “legal justice” do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. No form or procedure should ever be permitted to exclude the presentation of a litigant’s defence.

Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder.They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be  implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between judicial act and an administrative act has withered away. The adherence to principles of natural justice as recognized by all civilized states is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. in its wide umbrella comes everything that affects citizen in his civil life.

Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

In some cases it has been observed that where grant of opportunity in terms of principles of natural justice does not improve the situation, “useless formality theory” can be pressed into service. In this case it is not necessary to go into “useless formality theory” in detail in view of the fact that no prejudice has been shown.(Canara Bank vs Debasis das (2003) 4 SCC-557.

 

Right to hearing-Generally-Scope and applicability-Applicability-When validity or otherwise of the Govt.order directing regularization of services of certain employees was itself in question,held,giving opportunity of hearing to those employees to ascertain whether they fulfilled the requirements of the Govt. order would be futile.

In a case of this nature, where the validity or otherwise of a government order is in question, the principles of natural justice will have no role to play and in any event recourse thereto would result in futility.Therefore,there is no substance in the contention that each employee was individually entitled to be given an opportunity of being heard so as to enable the competent authority to come to the conclusion as to whether they had fulfilled the requirements contained in the aforementioned GOMs No.86 dated 12.3.2001 or not.(A Umarani vs Registrar,Coop.Societies.(2004) 7 SCC-112.

 

 

 

Compliance with principles of, not required where act is legislative in nature-Exception to this rule-It is true that making of Rule 38-A is a legislative act and not an administrative act and that an act which is legislative in character, as contrasted from an executive act or a judicial/quasi-judicial function, does not oblige the observance of rules of natural justice. But a delegated legislation though legislative in character, will be invalid, on the ground of violation of principles of natural justice, if the enabling Act under which the delegated legislation is made, specifically requires observance of the principles of natural justice for doing such an act. State of T. N. v. P. Krishnamurthy, (2006) 4 SCC 517:

 

 

Two pillars of the principle of natural justice, restated –The principle of natural justice is based on two pillars: (i) nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own cause, But the principles of natural justice can be excluded by a statute, They can also be waived, In a case where doctrine of necessity is applicable compliance with the principles of natural justice would be excluded. State of U. P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276:

 

 

Bias-Presumption against bias-Extension of service- Review Committee-The contention of the appellants that the decision of the Interview Committee was influenced by a report of the General Manager cannot be countenanced. It is difficult to believe that the two top-most officers of the respondent Bank, Who were accepted without demur or protest as members of the Committee, and a person of the rank of Chairman-cum-Managing Director of an unconcerned bank and who had no interest in the matter whatsoever, would all conspire together so that the appellant was denied an extension. D. C. Aggarwal v. State Bank of India, (2006) 5 SCC 153:

 

 

Distinction between-“Malice” in its legal sense means malice such as may be assumed for a wrongful act done intentionally but without just cause or excuse or for one of reasonable of probable cause. The term “malice on fact” would come within the purview of the said definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked.

Apart from the fact that the authorities concerned had made up their minds to promote from the very beginning, as an approval therefore was obtained from the Chief Minister only on 20-4-1997 and the order of promotion was issued on 25-4-1997, although decision thereupon had been taken on 15-4-1997 itself. Such an action is undue haste on the part of the respondents and smacks of mala fide.

Furthermore, for the purpose of promotion to the post in question, cases of at least 5 candidates were required to be considered. The case of Respondent 3 was considered alone, although, there were two other candidates, who fulfilled the same criterion. Even no seniority list was prepared at the time of constitution of the DPC.

Why PSC was ignored has not been explained in the note put up by the Principal Secretary, Labour Department before the Chief Minister. The state proceeded on the basis that the act of conversion would require an amendment to the Rules. Despite the same, the Principal Secretary put up the note before the Chief Minister without bringing the same to her notice. The idea of conversion of the post should have been mooted keeping public interest in view and not the interest of an individual. The entire approach of the authorities of the State, thus, was only for achieving private interest and not public interest. It was in that sense that the action suffered from the vice of malice in law. Undisputedly, there were other employees also who belonged to the Scheduled Cast and were senior to Respondent 3. R. S. Garg v. State of U. P., (2006) 6 SCC 430:

 

 

Violation of natural justice-When material-Need for prejudice-Non-observance of principles of natural justice must be shown to have caused prejudice to the person concerned.

The doctrines of principle of natural justice are not embodied rules. They cannot be applied in a strait-jacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. Om Prakash Mann v. Director of Education (Basic), (2006) 7 SCC 558:

 

 

Two basic principles of natural justice restated- Duty to give reasons, if is a third principle- Case-law discussed but conclusive opinion not expressed –Principles of natural justice are based on two basic pollars:

(i)                   Nobody shall be condemned unheard (audialteram partem),

(ii)                 (ii) Nobody shall be judge of his own cause (nemodebet esse judex in propria sua causa).

Duty to assign reasons is, however, a judge-made law. There is dispute as to whether it comprises a third pillar of natural justice. However, at other view is that the question as to whether reasons are required to be assigned is a matter of legislative policy which should be left to the decision of Parliament. But it is beyond any cavil that ordinarily, unless excluded by operation of statute, the superior courts while exercising power of judicial review shall proceed on the basis that assignment of reasons is imperative in character. When an authority, be it administrative or quasi-judicial adjudicates on a dispute and if its order is appealable or subject to judicial review, it would be necessary to spell out the reasons therefore. While applying the principles of natural justice, however, the court must also bear in mind the theory of useless formality and the prejudice doctrine.

When by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in that behalf, compliance with principles of natural justice would be implicit. Exceptions, therefore, are required to be provided for either expressly or by necessary implication.

In any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi-judicial order. There might have been difference of opinions at one point of time, but it is now well settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated. Rajesh Kumar v. Dy.CIT, (2007) 2 SCC 181:

 

Show cause notice-When not necessary-By now, it is well-settled principle of law that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that the respondent was prejudiced for non-observance of the principles of natural justice.(AP Social Welfare Residential Educational Institiutions vs Pinddiga Sridhar(2007) 13 SCC-352.

 

Natural Justice-Its one-word meaning is “fairness”-It is a flexible and expanding concept-it is open to court to develop new principles-Transparency and good governance added as new components of natural justice and held, all persons in public employment entitled to know grading given to them in confidential reports and to represent against them-This requirement applies whether or not there are departmental instructions to this effect, or even if there are instructions contrary to it, for the reason that natural justice which is facet of Art.14,overrides all contrary instructions.(Dev Dutt vs UOI (2008) 8 SCC-725.

 

 

Nature, scope and applicability-Even a pure administrative act entailing civil consequences, has to conform with rules of natural justice- With the growth of the administrative law, the old distinction between a judicial act and an administrative act has withered away.Therefore,even a purely administrative order which entails civil consequences, must be consistent with the rules of natural justice.

The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. Anything which affects a citizen in his civil life comes under its wide umbrella.(Sahara India vs CIT(2008) 14 SCC-51.

 

Applicability of Principles of legitimate expectation reiterated-A person basing his claim of the doctrine of legitimate expectation has to satisfy that he relied on the said representation and the denial of that expectation worked to his detriment- Courts can interfere only if the decision taken by the authority is found to be arbitrary unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest-Concept of legitimate expectation has no role to play where State action is as a public policy or in the public interest unless the action take amounts to an abuse of power. Sethi auto Service Station v. DDA, (2009) 1 SCC 180:

 

Relation with natural justice-Held, legitimate expectation is based on principle of natural justice-Mere anticipation is not legitimate expectation. CSIR v. Ramesh Chandra Agrawal, (2009) 3 SCC 35:

 

Nature, scope and applicability-Even a pure administrative act entailing civil consequences, has to conform with rules of natural justice.-With the growth of the administrative law, the old distinction between a judicial act and an administrative act has withered away. Therefore, even a purely administrative order which entails civil consequences must be consistent with the rules of natural justice.

The expression “civil consequences” encompasses infarction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. Anything which affects a citizen in his civil life comes under its wide umbrella. Sahara India (Firm) (1) v. CIT, (2008) 14 SCC 151:

 

Applicability of principles of natural justice-Exclusion or inapplicability of rules of natural justice-Cancellation of allotment and forfeiture of earnest money (without affording any opportunity of hearing)-Made pursuant to terms of allotment letter on failure of allottee to comply with requirements stipulated in said letter subject to fulfillment of which allotment made- Sustainability –In view of non-compliance with such requirements and consequential absence of any agreement/contract between the parties concerned, held, no issue as to violation of principles of natural justice arose in present case-Hence, plea as to said violation rejected as meritless. Chaman Lal Singhal v. HUDA, (2009) 4 SCC 369:

  

 

Applicability of principles of natural justice-Exclusion or inapplicability of rules of natural justice-Cancellation of allotment and forfeiture of earnest money(without affording any opportunity of hearing)-Made pursuant to terms of allotment letter on failure of allottee to comply with requirements stipulated in said letter subject to fulfillment of which allotment made-Sustainability-In view of non-compliance with such requirements and consequential absence of any agreement/contract between the parties concerned, held, no issue as to violation of principles of natural justice arose in present case- Hence, plea as to said violation rejected as meritless. Chaman Lal Singhal v. HUDA, (2009) 4 SCC 369:

 

 

Scope and applicability of the principle of proportionality-Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to “assess the balance or equation” struck by the decision-maker. Proportionality test in some jurisdictions is also described as the “least injurious means” or “minimal impairment” test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straitjacket formula and to say that Wednesbury has met with its death knell is too tall a statement. it has,however,to be recognized that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.

Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it funds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.

The courts have to develop and indefeasible and principled approach to proportionality, till that is done there will always be an overlapping between the tradional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variable or comparison, it enables the court to apply the principle with various degrees of intensity and offers potentially deeper inquiry into the reasons, projected by the decision-maker.(All India Railway Recruitment Board vs K.Shyam Kumar (2010) 6 SCC-614.

 

Maline in Law and Malice in fact-Nature and form of malice where it is attributed to State, restated-The state is under obligation to act fairly without ill will or malice-in fact or in law. “legal malice” or “malice in law” means something done without lawful excuse. it is an act done wrongfully and willfully without reasonable pr probable cause, and not necessarily an act done from ill feeling and spite. it is a deliberate act in disregard to the rights of  others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. is is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts.(Kalabharati Advertising vs Hemant Vimalnath Narichania(2010) 9 SCC-437.

 

 

 

Definition of “natural justice” and its applicability, discussed- judicial purpose and utility of natural justice, stated-The concept of natural justice can neither be put in a straitjacket nor it is a general rule of universal application. Rules of “natural justice” are not embodied rules. The phrase “natural justice” is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore. The principle implies a duty to act fairly i. e. fair play in action. The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Automotive Tyre Manufacturers Assn. v. Designated Authority, (2011) 2 SCC 258: 

 

 

Meaning and content of natural justice is well-understood in law but the principles of natural justice cannot be applied in a vacuum without reference to relevant facts and circumstances of a case-They cannot also be put in a straitjacket formula-There may be circumstances where only one conclusion is possible and insistence of natural justice may be a futile exercise-On the contrary, there may be cases where non-observance of natural justice may itself be prejudicial to a party and separate proof of prejudice may not be required in such cases.Municipal Committee,Hoshiarpur vs Punjab SEB (2010) 13 SCC-216.

 

 

Underlying principle of natural justice evolved under common law,is to check arbitrary exercise of power by State or its functionaries-Therefore, principle implies a duty to act fairly i.e.fair play in action.(Kesar Enterprises Ltd vs state of UP (2011) 13 SCC-733.

 

 

 

 

 

When available –Termination of contract preceded by a show-cause notice and a hearing given by competent authority although opportunity of cross-examination of persons whose statements were recorded by the agency on whose report termination was based, not given-If principles of natural justice infringed-Held, rules of natural justice are not rigid, immutable or embodied rules capable of being put in straitjacket nor apply universally to all kind of domestic tribunals and enquiries-Where violation of principles of natural justice is alleged, courts will see whether affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably- In present case, contention that appellant should have been given an opportunity of cross-examination rightly rejected by high Court keeping in view that nature of the inquiry was primarily in the realm of contract, aimed at finding out whether appellant had committed any violation of the contractual stipulations between the parties –Issue of a show-cause notice and disclosure of material on the basis of which action was proposed to be taken against the appellant, was in compliance with requirement of fairness to appellant who was likely to be affected by the proposed termination-Absence of any allegation of mala fides against those taking action or agency that had collected the information establishing the breaches, as also failure of the appellant to disclose any prejudice, all indicated that procedure adopted by respondent was fair and in substantial, if not strict, compliance with requirements of audi alteram partem- Constitution of India,  A. S. Motors (p) Ltd. v. Union of India, (2013) 10 SCC 114:

 

 

 

Manner in which to be applied –Natural justice cannot be permitted to become an unruly horse-“Full opportunity” of hearing, etc.-Realistic and flexible approach-While dealing with the plea os bias advanced by the delinquent officer or an  accused, a court or Tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non justice. One has to keep oneself alive to the relevant aspects whole accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias, To adjudge the tenability of plea of bias a Tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one’s individual perception or misguided intuition. The plea of bias it is to be scrutinized on the basis of material brought of record whether someone makes wild, irrelevant and imaginary allegations to frustrate a trial or it is in consonance with the thinking of a reasonable man which can meet the test of real likelihood of bias. The principle cannot be attracted in vacuum.

Respondent 1 at one point of time had filed a long list of witnesses. It is to be borne in mind that on the earlier occasion the Tribunal permitted for examination of cross-examination of witnesses who had something to do with the documents. The additional Col shall keep that in view so that there is no procrastination of the proceedings at the behest of the delinquent officer, for natural justice has also its own limitations. It cannot be allowed to become an unruly horse. Union of India v. Sanjau Jethi, (2013) 16 SCC 116:

               

 

               

                When permissible-Discussed-The courts have repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of junctions performed and to extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allowa person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.

                There may be situations wherein for some reason-perhaps because the evidence against the individual is thought to be utterly compelling-it is felt that a fair hearing “would make no difference”-meaning that a hearing would not change the ultimate conclusion reached by the decision-maker-then no legal duty to supply a hearing arises. In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual.

                Further, it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”-. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.

                However, the decision-making authority cannot itself dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference i. e. that no prejudice will be caused to the person against whom the action is contemplated. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. Whether the opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken.

                Thus the issue in the present case is whether any purpose would be served in remitting the case to the authority to make a fresh demand of amount recoverable, only after issuing notice of show cause to the assesses. In the facts of the present case, such an exercise would be totally futile having regard to the law laid down by the Supreme Court in R. C. Tobacco case.

                The appellant was accorded certain benefits under the Notification dated 8-7-1999. This Notification stands nullified by Section 154 of the 2003 Act, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefited under the aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the ruling in R. C. Tobacco case. It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and the case stands covered by “useless formality theory”. Rules of natural justice are to be followed for doing substantial justice, but at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. Therefore, non-issuance of notice before sending communication dated 23-6-2003 has not resulted in any prejudice to the appellant and it is not feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality. Dharampal Satyapal Ltd. v. CCE, (2015) 8 SCC 519:

               

                Conduct of party disentitling it from being afforded a hearing- No inviolable rule that hearing must precede every decision-Pragmatic, realistic and functional approach of court needed-Audi alteram partem rule not applicable where conduct of affected party itself vitiated by fraud, malpractice and misfeasance: where conclusion of decision-making authority regarding such conduct tallying with report of subordinate authority (committee constituted by it in this case) and where legal position of affected parties already well known-Having regard to legally reprehensible manner in which respondent abused acquisition of land in its favour, held, opportunity of hearing prior to resumption of land by appellant State not required- Land Acquisition Act, 1894. Ss. 41 and 44-A. State of Haryana v. Northern Indian Glass Industries Ltd., (2015) 15 SCC 588: