RULE OF FAIR HEARING (AUDI ALTERAM PARTEM) (By- Adithya Narayanan)
RULE OF FAIR HEARING
(AUDI ALTERAM PARTEM)
Authored By- Adithya Narayanan
Sri Dharmasthala Manjunatheshwara Law
College,
Mangalore, Karnataka,
Affiliated To Kslu, Hubballi
Abstract
The
notion of Natural Justice has developed through the Latin maxim, “Audi Alteram
Partem”. Natural Justice is a conception of civil law, where decree, which is
inclined should be just and logical. Justice and equality must be there.
Principle
of Natural Justice in country India, can be documented from Article 14 and
Article 21 of the Indian Constitution. Where Article 14, deals about the
equality before the law and Article 21 speaks about the protection of life and
personal liberty.
Maneka
Gandhi Vs. The Union of India, interpreted the Article 21 of Indian
Constitution. It was held by the Court that law and procedure which is followed
must be unbiased, equitable and fair kind.
The
order of Natural justice comes into force where no favour is done with anyone
at the time of any Governmental activity. The Rule of Audi Alteram Partem is
the main idea of the concept of Natural Justice. The concept also pronounces
that no one can be sentenced unheard. Both the parties is given a chance of
fair hearing and justice will be concluded with regard to both the parties,
where both the parties have right to speak. No conclusion will be taken by the
Court without hearing both the parties. Both the parties have a chance to
safeguard each other.
This
Article thus discusses about, the maxim “Audi Alteram Partem”, describes its
ingredients and its exceptions in detail along with case laws, finally ending
with a conclusion.
Introduction:
‘Audi Alteram Partem’ is one
of the fundamental principles of natural justice, which means ‘No man should be
punished or condemned unheard’, “hear both the sides before passing any
judgement”, ‘No person should suffer in person withoutan opportunity of being
heard’. ‘No person can be made to suffer without fair hearing’.
Natural justice (Audi Alteram
Partem) requires that both the sides should be heard before passing an order.
The affected person must be given an opportunity to produce evidence in support
of his case. He should be disclosed the evidence to be used against him and he
should be given an opportunity to rebut the evidence produced by the other
party.It is a divine law having been followed ever since ancient days.
Ingredients Of The Maxim
‘Audi Alteram Partem’:
The maxim includes two broad
ingredients namely:
1) Notice
2) Fair hearing
Notice:
Notice is the beginning step
of a hearing. Before any action is taken, the aggrieved party must be given a
notice in writing against the proposed action and seek his explanation.
Such notice is otherwise
known as “show cause notice”. An order passed without giving a notice is
invalid and vitiative of the principles of Naturaljustice.
The notice must be reasonable
and adequate in its contents. The notice must contain sufficient information
about the nature of charge, penalty proposed and other materials required for
the affected person to properly defend himself. The notice must be specific,
precise, clear and certain in its wordings and content.[1]
The notice must give reasonable
time to the affected person to study and send his reply. If a notice is given
for one particular charge, then the person cannot be punished for a different
charge for which he was not given an opportunity to defend.
The following are the leading
case laws on this point:
a) Urban Housing Co. Vs. Oxford Sitting
Council:
The court held that
every person whose civil rights are affected must have reasonable notice of the
cause affecting such rights.[2]
b) Punjab National Bank Vs. All India
Employees Federation:
The supreme Court held
that in all disciplinary proceedings, the person accused must be conducted only
on such specific charges.
c) S.R. Sharma Vs. State of U.P:
The court held that if
the charge sheet contains vague allegations and are not specific and clear in
nature, then it amounts to defective notice and hence invalid.
d) Grosons Pharmaceutical (P) Ltd Vs.
State of Uttar Pradesh:
A drug manufacturer
was having contractual relationship with the government. There was no rule
providing for issuance of Notice before blacklisting. As blacklisting would
result in civil consequences, the Supreme Court held that the principles of
‘Audi alteram partem’ should be observed. The Court further observed that it is
sufficient if ‘notice to show cause’ is given to satisfy the principle of ‘Audi
alteram partem’.
e) V. Joseph Vs. Executive Engineer,
Cochin:
The petitioner, a
contractor was blacklisted by the order of the Executive Engineer and before
cancelling all contracts with him, a show cause notice did not mean adequate opportunity
to representation. Therefore, the court held the order invalid. It further
observed that in addition to notice, further opportunities to be heard must
also be given to the affected party.
f) Charan Lal Sahu Vs. Union of India:
Bhopal Gas Leak Disaster
(processing of claims) Act, 1985, contained a provision permitting the Central
Government to represent the claims of victims in the suit against the
multinational company responsible for disaster. This was questioned, alleging
that the Central Government being a joint tort feaser and hence incompetent to
represent the victims as no man should be judge of his own case.
The Supreme Court held
that, if there is no other person who is competent to adjudicate or if no other
competent Tribunal can be constituted, then the Government was competent to
represent the victims.
Further, though
‘pre-decisional notice’ was not given, in the review petition pending before
Supreme Court, it afforded opportunity of hearing of the victims. The Supreme
Court, therefore, observed that in certain circumstances to do justice to a
great right, it is permissible to do a little wrong.[3]
Fair Hearing (Audi Alteram
Partem)
The second ingredient of the
maxim ‘Audi Alteram Partem’ is fair opportunity of being heard to a person
before any punitive action is taken against him.
·
ESSENTIALS FOR FAIR HEARING:
A hearing is a fair
hearing, if the following conditions are fulfilled:
1. The deciding authority should have
received all the relevant evidence (in the form of statements, documents, etc.,)
furnished by both the complainant/petitioner and the affect party/respondent.
2. The deciding authority must disclose
to the affected party all the relevant evidence which he wants to use against
him.
3. The deciding authority must give the
affected party an opportunity to rebut the evidence which are used against him.[4]
·
STAGES OF FAIR HEARING:
Fair hearing includes
the following:
1. Right of presentation of the case.
2. Right to know the other side’s
evidence and right of cross examination.
3. Right of oral hearing.
4. Right of representation through
Counsel.
5. Speaking order.
1. Right of presentation of the case:
A fair hearing involves adequate and reasonable opportunity to both the
parties to effectively present their cases and adduce relevant evidence to
prove their cases.
a. Cooper Vs. Words Worth Board of
Works, (1863):
The Wordsworth Board had a statutory provision of demolishing buildings
without any opportunity of being heard, if constructed without prior
permission. The Court held that such statutory provision is void, as it is
violative of natural justice.
The Metropolic Management (amended) Act empowered the local authorities to demolish all
sanitary dwellings and buildings. The Act did not provide any procedural
preliminaries like issuing a Notice to the landlord, calling for explanation
and providing opportunity to represent, etc. The Court held that the Act was
void as demolishing dwellings without notice to landlord amounts to illegal act
and violation of Natural Justice.[5]
b. Yasho Rajya Lakshmi Vs. State of Jammu
and Kashmir, 2001:
A Tahsildar passed an order in a hurry without giving a fair
opportunity of being heard to the petitioner. The order was set aside by the
Supreme Court and the Tahsildar was directed to enquire into the matter afresh.
c. Pepsu Road Transport Corporation Vs.
Lachman Dass Gupta, 2002:
In disciplinary proceedings, non-furnishing of documents relied upon by
Department in establishing the charge to the delinquent employee amounts to
denial of reasonable opportunity to delinquent to defend himself. The Court
held that the order of termination is liable to be set aside.
d. Board of Highschool Vs. Ghan Sheyam,
1962:
When the respondent’s result was cancelled and he was debarred from
appearing in the next year’s examination even without giving him an opportunity
of being heard, the Supreme Court has held that the examinee should have been
heard by the committee since the function of the committee is quasi- judicial.
The Supreme Court held no personal knowledge of the matter and had to depend
upon the material evidence placed before it.
2. Right to know the other side’s
evidence (Right of cross examination):
The affected party has the right to know the evidence based on which
action is proposed to be taken against him by the enquiring authority. He must
be given an opportunity to peruse such records of evidence. Similarly, no
evidence can be recorded in any enquiry proceedings in the absence of the
affected party.[6]
a. Kumari Chitra Vs. Board of High
school:
Due to shortage of school attendance, the examination written by
petitioner was cancelled without giving her any previous notice. The Court set
aside the order of cancellation of examination on the ground that no show cause
notice was issued to her before such cancellation.[7]
b. Ridge Vs Baldwin, 1964:
This is a leading case on the principle of “Audi Alteram Partem” (No
man can be punished unheard).
A Chief Constable was dismissed by the Watch Committee Members
under the Municipal Corporation Act 1882. The Constable was dismissed
when he was absent from duty. He was not given a Charge sheet or Notice. He
challenged the order of the Watch Committee on the ground that he was not given
an opportunity to be heard.
The Court of Appeal, relying on Makkawda Ali Vs. Jayarathna case,
dismissed the petition by the Constable and held that the Watch Committee was
not bound to observe the principles of Natural Justice.
In the Second Appeal to the House of Lords, the decision was
reversed and it was held that the order of dismissal of the Watch Committee was
null and void, as it violated Natural Justice. The following principles of
Natural Justice were laid down in the case:
i.
The
right to be heard by an unbiased Tribunal.
ii. The right to have notice of change of
misconduct.
iii. The right to be heard in answer to
the charges.
c. Hiranath Misra Vs. Rajendra Medical
College, Ranchi, (1973):
The petitioners namely some boy students were dismissed from college
for their misbehaviour with some girl inmates of the hostel. The contention of
the petitioners was that the statements of girl students were recorded in their
absence and no opportunity to cross examine the witnesses or peruse the
Committee’s report, was given to them.
The Supreme Court rejected their contention and held the principle the
principle of Natural Justice, though inflexible, may differ in different
circumstances. To make molested girl students face a strict enquiry, put them
to cross examination, etc., may not be correct at all especially in such
sensitive circumstances. The fact that the female students’ clear identity of
the petitioners, the oral hearing of each male student by the enquiry authority
etc., are sufficient steps to satisfy the principles of Natural Justice.[8]
d. Radha Krishnan Vs. Osmania
University:
The entrance test for M.B.A., course was cancelled due to the discovery
of mass copying in the test. The petitioners’ contention that “cancellation
without giving an opportunity to show cause why the test should not be
cancelled amounts to violation of Natural Justice” was rejected by the Court.
The Court held that cancellation of the whole examination due to mass copying
is not violation of natural justice and it is not practicable to issue notice
or give opportunity to each and every student who appeared for the test.[9]
3. Right of oral hearing:
In India, in U.S.A and U.K., the Courts do not recognize the right of
oral hearing to the affected party as part of the principles of Natural
Justice.
However, certain statutory Acts recognize the right of oral hearing as
part of Natural Justice (Audi Alteram Partem rule). It is enough if reasonable
opportunity of being heard is given to the affected party to comply with
principles of Natural Justice.
In other words, opportunity of being heard need not necessarily be by
the personal hearing. It can be by written representation, etc.
a. Sri Krishnadas Vs. State of M.P:
The Court held that the test for observance of Natural Justice is that
the deciding authority must be impartial and must give hearing to the affected
party and should not hit him below the belt.
b. Karnataka Public Service Commission
and Others Vs. B.M. Vijayashankar and Others (1992):
On appeal, the Supreme Court held that the natural justice is a concept
which has succeeded in keeping the arbitrary action within limits and
preserving the rule of law.
Even though the procedure of affording hearing is as important as
decision on merits, yet urgency of the matter or public interest at times
require flexibility in application of the rule.
The circumstances of the case and the nature of the matter required to
be dealt may do justice better by denying opportunity of hearing and permitting
the person concerned to challenge the order itself on merits.[10]
4.
Right Of Representation Through
Counsel
The right of representation through an Advocate or Counsel is not
considered as part of Natural Justice and therefore cannot be claimed as a
matter or right. To grant permission to appear through a Counsel is a
discretionary power of deciding authority.
Generally, only when the case involves question of law or when the
affected party is totally illiterate., an opportunity to represent the case
through Counsel is permitted.
Similarly, when the other side is allowed legal representation, then
the affected party gets such right and denial of the same amounts to violation
of Natural Justice. Many statutes do not permit appearance through legal
counsel. For e.g., Factories Act.
a. Dilip Kumar Vs. Port of Bombay:
The charged officer was denied representation through lawyer while the
prosecuting officers for the management were legally trained persons. The
Supreme Court held that it amounts to differential and discriminatory treatment
of the charged officer and amounts to violation of natural justice.[11]
b. A.K. Roy Vs. Union of India, 1982:
A detenue asked for the assistance of a lawyer to represent his case.
It was turned down by the tribunal as the statute expressly excluded
representation through lawyer. The detenue asked for the assistance of a friend
in representing the case which was also turned down by the Tribunal. The
Supreme Court held that the detenue could not be represented by a lawyer, but
he could very well take the aid of a friend to represent his case.[12]
5. Speaking orders or Reasoned
decisions:
‘Speaking order’ means an order which contains reasons for the decision
in it. In other words, the order speaks for itself.
According to Lord Denning, giving reasons is necessary for good
administration. The reasons provided in any order prevents arbitrary decisions.
The General rule in England and Indian law is, however, that reasons need not
be given for administrative or judicial decisions. Courts, many a time,
summarily dismiss petitions, appeals, etc., without giving reasons.
However, if a statute requires recording reasons in support of any
order, then the authority should comply with it. If any order, then reasons
must be recorded by the Court so that the appellate authority may be able to
decide whether the facts were correctly ascertained by the Courts.
The reasons recorded by any authority are subjected to Judicial
scrutiny. Undisclosed reasons just to avoid judicial scrutiny is not valid.
Unreasoned decisions may also be just but may not appear to be so outwardly to
the affected party.
If the reasons recorded are totally not relevant, then the order shall
be set aside. If the lower authority fails to record reasons for an order and
the appellate authority affirms it without recording reasons, the order is bad
in law.[13]
Similarly, if he reverses the order of the lower authority, then also
reasons must be recorded by him for doing so.
a. Hochticf Gammon Vs. State of Orissa,
1975:
The Supreme Court has a duty to see that the executives act lawfully
and if they fail to give reasons, then judicial scrutiny is permitted.[14]
b. Shyam Sunder Vs. M/S Harinagar Sugar
Mills Limited:
The Directors of a company passed a resolution by which the transfer of
certain shares was refused to be registered. The Central Government by an
‘Unspeaking order’ set aside such resolution under the Companies Act. The
Supreme Court held that even if the proceedings are of confidential nature, the
Central Government is bound to give reasons in its order.[15]
c. M.L. Kapoor Vs. Union of India:
The petitioner was selected for promotion in the I.P.S. list. His name
was in the list in the year 1967 but dropped in 1968. The only reason given for
dropping was that the record of the officer did not justify his appointment to
I.P.S. The Supreme Court held that the reason given was common to all dropped
officers, and hence it was not proper reasoning. The Committee should have
stated reasons specifically for each officer concerned.
Exceptions To Fair Hearing
(Audi Alteram Partem):
In the following cases
‘Notice’ as well as ‘fair hearing’ need not necessarily be given:
a. Sometimes for implementation of
‘statutory provisions’, natural justice may be violated. The statute may
impliedly or expressly exclude application of principles of natural justice.
Under such circumstances, natural justice cannot prevail over the statute.
b. On grounds of ‘Public Policy’,
principles of Natural Justice may be excluded. For e.g., in policy decision of
imposing prohibition in a state, no previous notice, etc., need be given.
c. If discharge of functions involves
administrative discretion, then principles of Natural Justice may be violated.
d. Article 311(2) of Indian Constitution specifically exclude ‘opportunity of
being heard’ in disciplinary matters of the following nature:
i.
When
a person is dismissed or reduced in rank on conviction in a criminal charge.
ii.
For
reasons recorded, if the authority is satisfied that it is not practicable to
hold an enquiry.
iii.
In
the interest of Security of State.
e. If ‘Notice and Fair Hearing would
obstruct taking prompt action (either preventive or remedial) e.g., removal of
nuisance, preventive detention, etc.
f. If the action is legislative, plenary
or subordinate, notice and fair hearing may be excluded.
g. If there is nothing unfair by
non-observance of Natural justice, then natural justice is excluded.
h. Under cases of necessity, natural
justice may be excluded.
Exclusion of natural justice
should not be made unless it is irresistible.[16]
CONCLUSION:
Rule of Natural Justice has been
promoted throughout human development. It has developed through the mankind
itself rather than the Indian Constitution. Every citizen has the right to
speak and be overheard when charges are being levied towards the person in
question.
“Audi Alteram Partem”, is a Latin maxim,
which is the quality of typical justice, where each person is given the chance
of being heard. The importance of the maxim itself says no person will be
condemned unheard. Therefore, in a judgement of a case will not be disposed in
the absence of another party.
There are several circumstances where
this rule of Natural Justice is excluded, and no opportunity is provided to the
party of being heard. Natural justice suggests that justice must be given to
both parties in an easy, reasonable and fair way. Under the vigilant eye of the
Court, both the parties are equal and have an equal chance to talk and to prove
themselves.
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