Audi Alteram Partem

(Hear the other side)

Some Possible Ways in which Administrative
decisions are taken:
• Enquiry (Hearing) Decision/Report
• Enquiry (Hearing) Report Decision (Agreeing/Disagreeing
with the report) {Student}
• Enquiry(Hearing) Report Trial based on the report(Hearing)
Decision. {Public Servant}
 Doctrine Explained
• Fortescue, J.: The first Hearing of Human History was given in the garden of Eden. Even God
Himself didn’t pass a sentence upon Adam, before he was called upon to make his defense.
• Notice
• Disclosure of evidence to the Other Party
• Opportunity to rebut the evidence
• Right to present the case and evidence by the Other Party
• One who hears must decide
• Reasoned decision or speaking order.
 Notice
• Denial of Notice and an opportunity to respond may vitiate an administrative
decision. Purpose is to make the other party aware of the charges against him
so that he can prepare a defense in his favor.
• Notice is to be served even if the statute or rules don’t expressly mention so.
• Contents of Notice: In India there is no law like the Administrative
Procedure Act in the USA, which makes statutory requirements about the
contents of a Notice. In India, what constitutes a valid Notice is learnt
through Judicial pronouncements.
 Notice Contd.
• A notice must be clear, specific and unambiguous. It must contain, Time/Place and the Nature
of hearing, statements of Charge and such materials necessary to allow the other party to
prepare an effective case. It must also give the other party reasonable Time to prepare his
defense. G. Kondala Rao v. Registrar, Shri Venkateswara University, AIR 1995 AP 338
• A person cannot be charged for something of which he does not have notice or does not have
reasonable opportunity to prepare his defense.
• However, if no prejudice is caused to the other party, a mere formal defect in the notice
doesn’t vitiate the administrative decision. (For example a notice of 3 days instead of 7 as
required by rules does not vitiate the disqualification of an MLA by the Speaker: Ravi S
Nayak v. Union of India, AIR 1994 SC 1558)
 Disclosure of Evidence to the Party
• The other party has a Right to know the evidence against him. An
administrative decision based on an evidence which the other party is not
aware of or reasonable opportunity has not been given to him to rebut such
evidence is vitiated by non-compliance with PNJ.
• Suresh Koshy v. University of Kerala, AIR 1969 SC 198
• Managing Director, ECL v. B. Karunakar, AIR 1994 SC 1074
• Till which stage reports must be furnished to him depends on till what stage
the Hearing takes place.
Government Employees u/A 311 of the Must employ Method 3Managing
Indian Constitution, if the proposed Director, ECL v. B. Karunakar
penalty is dismissal, demotion or
removal

Government Employees u/A 311 of the Depends on Service Rules: If there is an

Indian Constitution, if the proposed enquiry before punishment (method 2 or
penalty is other than dismissal, demotion 3) entitled to the second report(ultimately
or removal Method 3). If method 1 then no second
report required. Managing Director, ECL
v. B. Karunakar

All government employees Other than Depends on Service Rules: If there is an

u/A 311 (Government Doctor/ enquiry before punishment (method 2 or
Government Teacher etc.) 3) entitled to the second report(ultimately
Method 3). If method 1 then no second
report required. Managing Director, ECL
v. B. Karunakar

People other than government employees Depends on Concerned Rules: Following

such as Students. Suresh Koshy v. University of Kerala, no
need for a second report to be furnished
even if enquiry is held before punishment.
No need for second report if method 1 is
applied.
 Opportunity to Rebut Adverse Evidence
• Cross Examination:- Never meant as an integral part of PNJ. If denial of
Cross-Examination results in certain prejudice to the Other party then it
becomes a part of natural Justice.
• U.P. Warehousing Company v. Vijay Narayan Vajpayee, AIR 1980 SC 840
• State of Jammu and Kashmir v. Bakshi Gulam Muhammad, AIR 1967 SC
122
• Hira Nath Mishra v. Rajendra Medical College, AIR 1973SC 1260
 Right to Rebut Contd.
• Right to Legal Representation:- It was never meant to be a part of Natural
Justice and one can’t claim it as a right. In India, some statutes recognize legal
representation and some expressly bar legal representation.
• However, if denial of legal counsel causes prejudice to the cause of the other
party, it is allowed. For example, if cross-examination of witnesses at the
enquiry or hearing level requires service of a lawyer, or if complicated
questions as to law and facts arise or if the administration itself is represented
by a trained lawyer etc. (J. K. Agarwal v. Haryana Seeds Development
Corporation, (1991) 2 SCC 283)
 Right to present case and evidence by the
Other Party
• Reasonable opportunity is to be given to the other party to present his own
defense and evidence.
• State of Orissa v. Dr. Binapani, AIR 1967 SC 1269
• Dhakeshwari Cotton Mills v. CIT, AIR 1955 SC 65
 One who hears must Decide
• In India, there is not sufficient judgment to suggest that this principle is
applicable. In the UK the House of Lords has upheld the principle in
Local Government Board v. Alridge, 1915 AC 120.
• Pradyut Kumar Bose v. Chief Justice of the Calcutta High Court, AIR
1956 SC 285
• Pradyut Kumar was a case of 1956 and there was no requirement of
compliance with PNJ in administrative action. However even after AK
Krypak the Court is reluctant to apply this principle. For example, Ossein
& Gelatine Manufacturer Association v. Modi Chemicals, AIR 1990 SC
1744
 Reasoned Order/Speaking Order
• An Order must contain reasons in support of it. A party has a right to know not
only the result of an enquiry but also the reasons in support of the decision.
• When a statute expressly provides for reasons, it must be provided. When the
statute doesn’t, the requirement of reason are to be inferred from the facts and
circumstances. Absence of reason doesn’t always vitiate the decision.
• Where there is a scope of appeal against an order, reasons must be recorded
otherwise, the Appellate authority cannot function.
 Reasoned Order/Speaking Order Contd.
• No need to be detailed or elaborate, only relevant reasons are to be recorded.
• The appellate authority need not record reasons, when it only affirms the order passed by
the lower authority. But if the appellate authority reverses the decision of the lower
authority then reasons must be recorded S. N. Mukherjee v. Union of India, AIR 1990 SC
1984. See also, Shri Tara Chand Khatri v. Municipal Corporation of Delhi, AIR 1977 SC
567 (Even when a decision is being taken by an authority based on an enquiry
commission report, no need to record reasons if authority in agreement with the findings).
• The reasons recorded by the administration are always open to judicial Scrutiny. An order
can be set aside if the reasons are irrelevant, extraneous, incorrect or irrational.
 Reasoned Order/Speaking Order Contd.
• Effect of Non-Recording of Reasons: The Judicial trend is not Uniform.
Sometimes it has been held that there is an error of law apparent on the
face of the record and therefore the decision is quashed and set-aside.
Sometimes the Court may ask the administration to look into the matter
again and record reasons or ask for reasons from the administration in
form of affidavit. Sometimes the court looks into the record itself and
comes to a conclusion.
 Exceptions to AAP
• Post Decisional Hearing:
• Maneka Gandhi v. Union of India, (1978) 1 SCC 248
• Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664
• Farid Ahmad v. Municipal Corporation of the city of Ahmedabad, AIR 1976 SC
2095
• K. I. Shepherd v. Union of India, (1987) 4 SCC 431
• Canara Bank v. V. K. Awasthy, (2005) 6 SCC 321
 Exceptions Contd.
• Statutory Exclusion:- Union of India v. Colonel JN Sinha, AIR 1971 SC 40
• Legislative Function:- Charanlal Sahu v. Union of India, AIR 1990 SC 1480
• Emergency/Public Interest:- Maneka Gandhi v. union of India, (1978) 1 SCC 248
• Impracticality:- Bihar School Education Board v. Subhash Chandra, AIR 1970 SC 1269
• Confidentiality:- Hira Nath Mishra v. Rajendra Medical College, AIR 1973SC 1260
• Academic Evaluation:- JNU v. BS Narwal, AIR 1980 SC 1666
• Interim Disciplinary measure:-Abhay Kumar v. K Srinivasan, AIR 1981 Del 381
• Useless Formality.