Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY LUCKNOW

ADMINISTRATIVE LAW
FINAL PROJECT ON

“Effect and Impact of Non Observance of the

principles of Natural Law”

Submitted to:- Submitted by

Ms. Ankita Yadav Suryansh Gupta

Assistant Prof. Law Enroll - 160101153

RMLNLU Vth Semster.

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Administrative Law teacher

who gave me the golden opportunity to do this wonderful project on the topic “effect of
non observance of principles of natural justice ” and also for her guidance and constant
supervision as well as for providing necessary information regarding the project & also for
her support in completing the project. I am very grateful to her exemplary guidance.

However, it would not have been possible without the kind support and help of many
individuals. I would like to extend my sincere thanks to all of them.

I would like to express my gratitude towards staff members of library for their kind co-
operation which helped me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project and people
who have willingly helped me out with their abilities.
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ------------------------------------------------------------------------------- 2

TABLE OF CONTENTS -------------------------------------------------------------------------------- 3

INTRODUCTION ---------------------------------------------------------------------------------------- 4

NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA. -------------------------------------------- 5

1. BIAS: PECUNIARY BIAS --------------------------------------------------------------------- 5

2. PERSONAL BIAS -------------------------------------------------------------------------------- 6

3. OFFICIAL BIAS ---------------------------------------------------------------------------------- 6

TESTS OF BIAS: ----------------------------------------------------------------------------------------- 7

4. REAL LIKELIHOOD TEST. ------------------------------------------------------------------- 7

OPPORTUNITY OF BEING HEARD ---------------------------------------------------------------- 8

PRE-DECISIONAL AND POST-DECISIONAL HEARING-------------------------------------- 9

REASONED DECISION OR SPEAKING ORDERS: ---------------------------------------------11

VIOLATION OF NATURAL JUSTICE, VOID OR VOIDABLE. ------------------------------11

EXCLUSION OF NATURAL JUSTICE: ------------------------------------------------------------12

CONCLUSION -------------------------------------------------------------------------------------------14
 INTRODUCTION

Principles of natural justice 1 are great humanising principles intended to invest law with
fairness and to secure justice and over the years they have grown into widely pervasive rules
affecting large areas of administrative action. 2 To ensure equal treatment 3 and to exclude
arbitrary power4 the requirement of natural justice was read into the statutes and applied to
particular fact situations The Supreme Court has declared in explicit terms: "With the
increase of the power of the administrative bodies it has become necessary to provide
guidelines for the just exercise of their power. To prevent the abuse and arbitrary exercise.5
and to see that it does not become a new despotism, courts are gradually evolving the
principles to be observed while exercising such powers ...."'

By rule of law it is meant to maintain a balance between administrative expediency and

efficiency on the one hand and the prevention of administrative arbitrariness and
capriciousness on the other.6 One of the main pitfalls of these principles was that they were
no1 applicable against bodies exercising administrative functions7 if not incorporated in the
statute itself.8 Today the administrative authority is required to comply with the requirement
of "fair play"9 to decisions which affect the rights of citizens In Orissa vs Binapani Dei10
Shah. Observed "It is true that the order is administrative In character, but even an
administrative order which involved civil consequences, as already stated, must be
consistently with the rules of natural justice.. .".

. Natural Justice recognizes three principles:

(i) Nemo debet essc judex in propria causa.

(ii) Audi alterem partem,

(iii) Speaking orders or reasoned decisions.

1
The report of committee on ministers power stated that natural justice had scarcely ceased to be a moral and
social principle and become a clear legal rule (p.75).
2
Maneka Gandhi V. Union of India, A.I.R. (1978) S.C.597. 625
3
Chaim Perelman, (Eng. Edn.1963) p.60.
4
Ginsburg On (1965), p.71.
5
Sathe, S.P. Administrative Law (4th edn Bombay, Tripathi), p. 164
6
Gopakumaran Nair. "New Horizons of Katural Justice'' 2 (1978) 253
7
May. C.J.: in R.V Corporation of Dublin. (1878) 2 L.R Jr.371
8
Radheshyam Khare vs State of Madhya Pradesh AIR 1955 SC 1907
9
Clark, D.H. "Natural Justice, Substance and Shadow". (1975), Pub.L., 1975 p.27
10
Orissa vs Binapani dei A.I.R. (1967) S.C. 1269
The first two have come to us from the Roman Law and the third one is a recent Innovation
due to the rapid development of the constitutional as well as administrative law.

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. To instill confidence in the system, justice should not merely
be done but seen to be done.

1. Bias: Pecuniary Bias

Pecuniary bias, however slight, will vitiate the decision. This is a case where the deciding
authority has monitory or proprietary interest In the subject matter. The historical example is
the decision of the House of lords in Dimes vs Grand Canal Junction11. There the judgement
of Lord Cottonham in a case was set aside since he held shares in the respondent company. It
was observed, "It is of importance that The maxim that no man is to be a judge in his own
cause should be held sacred" 12 Griffith and Street rightly state that a pecuniary Interest
however slight, will disqualify even though it is not proved that the decision is In any way
affected 13 In Halsbury’s Laws of England14 it is stated that "there is a presumption that any
financial interest however small in the

8. Bias can be categorized in three categories namely pecuniary, personal and official. It is
obvious that decision of the adjudicator would be affected if he is having pecuniary interest in
the subject matter of the proceedings. In Mohapatra vs. State of Orissa 15(AIR 1984 S.C.
1572), it was held that when the author of a book was a member of the committee set up for
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

11
(1852) 3 H.L C. 759
12
Ibid. This was reiterated in Frome United Beveries corporation vs Bath Justices.
13
Principles of Administrative Law (4th Edn. p 156)
14
4th End. Vol.1 para 68
15
AIR 1984 S.C. 1572)
consider the real likelihood of bias. In other words, 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.

2. Personal 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 vs. Government of West Bengal, on the constitutional validity of
Singur Land Rehabilitation and Development Act, Justice Saumitra Pal recused himself from
the case, citing that he knew some of the people in relation with the case personally.

3. 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 (Viraj vs. State of Orissa 1967 SC 158). 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.

This is a combination of ministerial bias and 'departmental bias'. This is also known as bias
as to subject matter The question of Official bias arises where a policy made public and later
the same officer hears the objections against policy.16 Here a conflict arises between duty to
act judicially and the duty to implement the policy. This type of bias is not seriously viewed
by the Court. According to Grlffith and Street rarely only this bias will invalidate proceedings

16
Franklin vs Minsiter of town and Planning
17
Wade remarks that ministerial or departmental policy cannot be regarded as a disqualifying
bias.18

Tests of Bias:

The test of bias is based on the principle that justice should not only be done but should
seemingly be done. The rule against bias operates on the basis of reasonableness by means of
reasonable suspicion of bias test19 and real likelihood of bias test.)] The real test is whether
bias actually exists. Here reasonableness plays a vital role. Where the statements or actions or
position of an adjudicator causes a reasonable person lo think that there is a real possibility of
bias on has part for or against a party in a particular case, he is disqualified from sitting as a
judge.20 "His Lordship observes, "This article would not welcome any incursion Into the rule
that it is never necessary to prove actual bias.. Nor would this article encourage the adoption
of a more sweeping test for bias than is afforded by the reasonable suspicion rest, since this
will unwarrantably hinder the business of administration"21

4. Real likelihood test.

Balckburn, B. held as early as 1866 that bias had not been proved as there was no "real
likelihood" of bias This shows that no one has doubted the existence of the real likelihood of
bias test. Lord Denning in Metropolitan case22 said that a real likelihood of bias exists when a
reasonable man would think it likely or probable that an adjudicator favoured one side
unfairly. According to S A. Desmith a 'real likelihood' means at least substantial possibility of
bias.23 In Halsbury Laws of England24 it is stated, "The test of bias is whether a reasonable
Intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of
bias"

17
administrative law. 4th Edn. P.156.
18
Administrative Law. 1988 pp.489-93
19
Markose A.T. calls it 'objective' and 'subjective' op.cit. p.215.
20
Francis Alexis "Reasonableness in the Establishing of Bias" Pub. L. 1979 p 143
21
Rawlins H F "Natural Justice - A test for the Nemo Judex kile"; 1980, 122
22
(1969) 1 Q.B.577, C.A.
23
Judicial Review of Administrative Action. 1980, p.262
24
Halbury's Laws of england 4th Edn., Vo1.2 para 551. p.282.
 OPPORTUNITY OF BEING HEARD

The second limb of natural justice is based on the latin maxim 'audi altem partem'. "Hear the
other side" is the essence of the principle. The authority must not hear one side In the absence
of the other25 or make a decision without a hcaring. Being one of the principles of natural
justice, it was made applicable even to administrative authority adjudicating matter having
civil consequences. In practice it is more frequently invoked than the rule against bias 'No
proposition can be more clearly established than that a man cannot incur the loss of liberty or
property for an offence by a judicial proceeding until he has had a fair opportunity of
answering the case against him.26

In English law the decision of the House of Lords in Ridge vs Baldwin 27 marked the turning
point In the province of natural justice. The Appellant was dismissed from service by the
watch committee without giving him an opportunity to present his case. The majority held
that his dismissal was null and void. Lord Reid observed, " ... a decision given without regard
to the principles of natural justice is void. The body with the power to decide cannot lawfully
proceed to make a decision until it has afforded to the person affected a proper opportunity to
state his case

The decision in Ridge vs Baldwin. was accepted by the Indian Supreme Court in Associated
cement co v. Shama28 Gajendragadkar, C.J. observed "lt would thus be seen that the area
where the principles of natural justice have to be followed and judicial approach has to be
adapted, has become wider ...." In kraipaks 29 case, the Court rejected the argument that
natural justice was not applicable to administrative function30 and held that it was against all
canons of justice to make a man judge in his own cause. "For many years the duty to observe
the rules of natural justice was confused with a duty to act judicially". It was observed, ".... if
the purpose of the rules of natural justice was to prevent miscarriage of justice one failed to
see why those rules should be made in applicable to administrative enquiries" 31

25
Dhakeshwarl vs CIT A.I.R. (1955) S.C.154.
26
Desmith, S.A Judicial Review of Administrative Action, 1980. p.158.
27
(1963) 2 All F.R. 66
28
A.I.R. (1965) S.C.1595.
29
A.I.R. (1970) S.C.150.
30
Wraith and Hutchesson.
31
Ibid. at 154.
In Mohinder Singh Gill vs Chief Election Commissioner 32-case, the Court observed that
principles of natural justice applied also to administrative inquiries having civil
consequences. Thus the Court insisted that there should be 'fairness' in administrative actions
having civil consequences.33 Foulks observes, "...we have now arrived at the position that in
seeking to argue that an administrative authority should have observed the rules of natural
justice, it is not necessary to prove that the body was acting quasi-judicially.. . . we may now
speak of the duty to act fairly rather than in accordance with the rules of natural justice".34 An
order involving civil consequences must be made consistently with the rules of natural
justice.

Pre-Decisional and Post-Decisional Hearing

Can the absence of a hearing before a decision is made be adequately compensated for by a
hearing ex-post-facto. A prior hearing may be better than a subsequent hearing, but a
subsequent hearing is better than no hearing at all, and in some cases the courts have held that
statutory provision for an administrative appeal or even full judicial review on the merits are
sufficient to negative the existence of any 1mp11ed duty to hear before the original decision
is made. The approach may be acceptable where the original decision does not cause serious
detriment to the person affected, or where there is also a paramount need for prompt action,
or where it is impracticable to afford antecedent hearing.35

In Ridge vs Baldwin the Appellant Chief Constable was dismissed without notice and
without enquiry. He was tried and acquitted on a Criminal Charge of conspiracy to obstruct
the course of justice Two other Police Constables who were tried along with him, were
convicted. While acquitting the Appellant, the learned judge commented adversely at more
than one place upon the leadership qualities of the Chief Constable suggesting that he was
found wanting in that respect. Thereupon, the Brighton Watch Committee, without giving
any notice or hearing to him dismissed him from service. The Violation was thus of a
fundamental nature. It was a case of total Violation of the principle of natural justice. There
could not be a greater violation of natural justice than that.

32
A.I.R. (1978) S.C.597
33
Foulks Principles of Administrative Law. London, Butterworths. 1976. (op.cit) 158
34
O.P&. p.158.
35
Smith. Judicial Review of Administrative Action 1980 at 193
Audi alteram Parterm is a highly effective rule which ensure that an authority arrives at a just
decision and it is calculated to act as a healthy check on the abuse or misuse of power by the
authority. In Maneka Gandhi vs Union of India, the Petitioners passport was impounded by
the Government of India in "Public Interest". She was not heard before taking the Impugned
action. She challenged the validity of the action. The Governments' contention was that
Application of the Audi Alteram Partem rule would have frustrated the very purpose of
impounding the passport. Even though the Supreme Court negative the argument, accepted
the doctrine of post-decisional hearing in exceptional cases. The Supreme Court held that
where In an emergent situation, requiring immediate action, it 1s not practicable to give prior
notice or hearing, the preliminary action should be soon followed by a full remedial hearing
In Charen lal sahu vs Union of India36 (Bhopal Gas Disaster Case), the Supreme Court came
to the conclusion that prior to settlement of claims before the Court, notices are required to
be given to the victims and pre-decisional hearing was required to be afforded and even
though post decisional hearing was not sufficient, in the peculiar facts and circumstances of
the case, the Supreme Court did not quash and set aside the settlement.

Mukherji. C.J. observed that "though settlement without notice is not quite proper, on the
materials so far , we are of the opinion that justice has been done to the victims bur justice
has not appeared to have been done. It is true that not giving notice, was not proper because
principles of natural justice are fundamental in the constitutional set up of this country. No
man or no man's right should be affected without an opportunity to ventilate his views. We
are also conscious that justice is a Psychological yearning, in which men seek acceptance of
their view point by having an opportunity of vindication of their view point before the forum
or the authority enjoined or obliged to rake a decision affecting then right. Though entering
Into a settlement without the required notice is wrong, in the facts and circumstances of the
case, notice should be given , would not result in doing justice in the situation.

36
A.I.R. 1990 SC 1480
 Reasoned Decision Or Speaking Orders:

Till recently, it was considered that the requirement to give reasons was not part of the
principles of natural justice. In India there is no general statutory provision which requires the
authority to give reasons. But the Courts have entrusted the duty on the administrative
authorities to give reasons. When a statute imposes the requirement of giving reasons it is
considered to be mandatory. Failure will be fatal In Maneka Gandhi Case, Bhagavati,
observed that giving of reasons is a healthy check agalnst abuse or misuse of power. In
S.N.Mukherlee V. Union of India the Supreme Court observed that except in cases where it
is exempted, an administrative authority exercising judicial or quasi judicial functions must
record reasons for its decision. If reasons are given the appellate Court would be able to
exercise its jurisdiction effectively. The Court observed that giving reasons would (1)
guarantee consideration by the authority; (2) introduce clarity in the decisions, (3) minimise
chances of arbitrariness in decision making. But it was observed that elaborate reasons just
like in the case of Court need not be given. Another advantage of giving reasons is that, the
party can exercise effectively the right of appeal. If no reason is given, the party will not be
able to exercise the right effectively. Moreover reasons will help the part) to know why such
a decision was taken. The Court will not be able to know the mind of the authority if reasons
are not given This is the most valuable safeguard against any arbitrary) exercise of power by
the adjudicating authority. The reasons recorded b) such authority will be judicially
scrutinised, and if the Courts find that the reasons recorded by such authority were irrelevant
or extraneous, incorrect, or non-existent, the order passed by the authority may be set aside.

Violation Of Natural Justice, Void Or Voidable.

In Ridge vs Baldwin37 it was pointed out that the violation of the rules of natural justice by an
administrative authority makes the decision void and not voidable Since the decision of
Ridge's case a controversy has arisen as to the nature of an order in violation of the principles
of natural justice. A voidable order is an order which is legal and valid unless it is set aside by
a competent court at the instance of an aggrieved party. On the other hand, a void order 1s not
an order in the eye of law It can be ignored, disregarded. disobeyed or impeached in any

37
(1964) AC 30.
proceeding before any Court or tribunal. It is a still-born order, a nullity and void ab
initio38.77 In Metropolitan Properties Co ltd vs Lannan39 the English Court took the view
that non-compliance of the principles of natural justice does not vitiate the order and the
order cannot be set aside at the instance of an aggrieved party. In India the Courts have taken
the view that whenever there 1s violation of any rule of natural justice, the order is null and
void In Board of. High School vs Ghanshyam a student who was charged with malpractice in
an examination, was not given a reasonable and fair opportunity to be heard in defence. The
order debarring him was quashed stating as violative of the principles of natural justice, In
Nawab khan V. State of Gujarat40 an order of externment was passed against the Petitioner on
September, 5, 1967 under the Bombay Police Act, 1951. In contravention of the said order,
the Petitioner entered the forbidden area on September 17, 1967 and was therefore prosecuted
for the same.

Exclusion Of Natural Justice:

The principles of natural justice have taken deep root in the judicial conscience of our people.
They are now considered so fundamental as to be 'implicit in the concept of ordered liberty
and therefore, implicit in every decision making function, call it judicial, quasi-judicial or
administrative. Where authority functions under a statute and the statute provides for the
observance of the principles of natural justice in a particular manner, natural justice will have
to be observed in that manner and in no other. No wider right than that provided by statute
can be claimed nor can the right be narrowed. Where the statute is silent about the observance
of the principles of natural justice, such statutory silence is taken to imply compliance with
the principles of natural justice. The implication of natural justice being presumptive it may
be excluded by express words of statute or by necessary intendment 41 So the principles of
natural justice can be modified and also in exceptional cases they can even be excluded. so
far as the audi alteram partem rule is concerned both in England and In India it is well
established that where a right to a prior notice and an opportunity to be heard before an order
is parsed would obstruct the taking of prompt action, such a right can be excluded where the
nature of the action to be taken, its object and purpose and the scheme of the relevant

38
Thakker, C.K. Administrative Law (Lucknow, Eastrrn Book Company), (1992) at 216
39
(1968) 3 All. B.R.304.
40
A.I.R. (1974) SC 1471
41
Union of, V. A.1.R (1985) SC 1416.
statutory provisions warrant Its exclusion, nor can the audi alteram partem rule be invoked if
importing it would have the effect of paralysing the administrative process or where the need
for promptitude or the urgency of taking action so demands, as pointed out in Maneka
Gandhi42 case .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.

In India, a law made by the parliament or a state legislature should stand the test of
constitutionality. It is submitted that even if there is no provision for observance or
compliance with the principles of natural justice, Courts may read natural justice with a view
to sustain the law as constitutional.43 In LNM Institute of economic development vs State of
44
Bihar it was held that natural justice need not be followed if it is so directed by the
legislature. In cases of emergency situation which requires immediate action or dire public
interest, or in cases of academic adjudication or where it is impracticable or in situations
which require immediate preventive action etc, the requirement of hearing may be
excluded.45 Natural justice may be excluded if its effect would be to stultify the action sought
to be taken or would defeat and paralyse the administration of the law. Where an obligation
to give notice and opportunity to be heard would obstruct the taking of prompt action,
especially action of a preventive or remedial nature, right of prior notice and opportunity to
be heard may be excluded by implication.

42
A.I.R. (1978) SC 597 at 681.
43
Charan V, V. A.1.R. 1990 SC 1480
44
A.I.R. 1988 Sc 1136.
45
In OlgaTellis vs Bombay Municipal Corporation the supreme court observed that rules of natural ustice ma
be excluded because of different reasons like time, &ace, apprehended danger and the like
 CONCLUSION

In a welfare state like India, the role and jurisdiction of administrative agencies is increasing
at a rapid pace and with rapid expansion of state liability and civic needs of the people
conferment of administrative discretion became need of an hour. With expansion in scope of
discretionary power of administrative authority the regulatory measures are to be equipped
with sufficient power to prevent abuse of discretion. In this regard Constitutionalzed rule of
law country like India, component of natural law, i.e. fair play in action must be found and
reproclaimed by judiciary to keep intact the supremacy of rule of law in India. In this regard
author submits that “the rules of natural justice can operate only in areas not covered by law
validly made” such old judicial decisions of Apex Court and other High Court must be
reconsidered and correct view would be declaring principles of natural justice necessary
corollary of Law, they must operate in presence of and even in contravention to the
established law where the interest of justice demands

In India, the principles of natural justice are firmly grounded in Article 14 & 21 of
the Constitution. With the introduction of concept of substantive and procedural due process
in Article 21, all that fairness which is included in the principles of natural justice can be read
into Art. 21. The violation of principles of natural justice results in arbitrariness; therefore,
violation of natural justice is a violation of Equality clause of Art. 14.

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. In the present day, without
affording hearing by an unbiased and impartial authority who must act objectively and must
also give out his mind, as to what weighed in decision making process, by incorporating
reasons to support the decision or, to say so, by giving a speaking order. This is necessary for
a society, which is governed by Rule of law. How substantive laws are applied and rights are
determined is a question not less important, to say it again, the principles of -natural justice
are great humanising principles intended to invest law with fairness to secure justice and to
prevent miscarriage of justice. The Principles of natural justice are considered to be more
important to ensure justice to the workman whose conduct is being enquired into.