Author Name:   shivaraj

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.

Principles Of Natural Justice In Indian Constitution

In The Constitution of India, nowhere the expression Natural Justice is used. However, golden thread of natural justice sagaciously passed through the body of Indian constitution. Preamble of the constitution includes the words, ‘Justice Social, Economic and political’ liberty of thought, belief, worship... And equality of status and of opportunity, which not only ensures  fairness in social and economical activities of the people but also acts as shield to individuals liberty against the arbitrary action which is the base for principles of Natural Justice.

Apart from preamble Art 14 ensures equality before law and equal protection of law to the citizen of India. Art 14 which strike at the root of arbitrariness and Art 21 guarantees right to life and liberty which is the fundamental provision to protect liberty and ensure life with dignity. Art 22 guarantees natural justice and provision of fair hearing to the arrested person. Directive principles of state Policy specially Art 39-A takes care of social, economic, and politically backward sections of people and to accomplish this object i.e. this part ensure free legal aid to indigent or disabled persons, and Art 311 of the constitution ensures constitutional protection to civil servants. Furthermore Art 32, 226, and 136 provides constitutional remedies in cases violation of any of the fundamental rights including principles of natural justice. With this brief introduction author undertakes to analyze some of the important provision containing some elements of Principle of Natural Justice.

2. Constitutional Provisions relating to the ‘Principles of Natural Justice’

2 (a) Article 14: as we know that this Article guarantees equality before law and equal protection of law. It bars discrimination and prohibits both discriminatory laws and administrative action. Art 14 is now proving to be bulwark against any arbitrary or discriminatory state action. The horizons of equality as embodied in Art 14 have been expanding as a result of the judicial pronouncements and Art 14 has now come to have a highly activist magnitude. It laid down general preposition that all persons in similar circumstance shall be treated alike both in privileges and liabilities imposed.

Art 14 manifests in the form of following propositions:
(i) A law conferring unguided and unrestricted power on an authority is bad for being arbitrary and discriminatory.
(ii) Art. 14 illegalize discrimination in the actual exercise of any discretionary power.
(iii) Art. 14 strikes at arbitrariness in administrative action and ensures fairness and equality of treatment.

In some cases, the Courts insisted, with a view to control arbitrary action on the part of the administration, that the person adversely affected by administrative action be given the right of being heard before the administrative body passes an order against him. It is believed that such a procedural safeguard may minimize the chance of the Administrative authority passing an arbitrary order. Thus, the Supreme Court has extracted from Art. 14 the principle that natural justice is an integral part of administrative process.

Art. 14 guarantee a right of hearing to the person adversely affected by an administrative order. In Delhi Transport Corporation v. DTC Mazdoor Union, SC held that “the audi alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to quasi-judicial bodies but also to administrative order adversely affecting the party in question unless the rule has been excluded by the Act in question.” Similarly in Maneka Gandhi v. Union of India SC opined that Art 14 is an authority for the proposition that the principles of natural justice are an integral part of the guarantee of equality assured by Art. 14 an order depriving a person of his civil right passed without affording him an opportunity of being heard suffers from the vice of violation of natural justice.

There are several instances where Art 14 of the Constitution is invoked to protect individual from the violation of natural justice principles, in Central Inland Water Transport Corporation Ltd v. Briojo Nath in this case a government company made a service rule authorizing it to terminate the service of permanent employee by merely giving him a three months’ notice or salary in lieu of notice. The rule was declared to be invalid as being violative of Art. 14 on the ground that it was unconstitutional. The rule in question constituted a part of the employment contract between the corporation and its employees. The Court ruled that it would not enforce, and would strike down, an unfair and unreasonable clause in a contract entered into between parties who were not equal in bargaining power. This was in conformity with the mandate of the “great equality clause in Art. 14.”

The Court emphasized that the judicial concept of Art. 14 have progressed “from a prohibition against discriminatory class legislation to an invalidating actor for any discriminatory or arbitrary state action.” The Court also emphasized that the rule was “both arbitrary and unreasonable” and “as it also wholly ignored and set aside the Audi alterum partum rule” violated Art. 14. This is of the view that “the principle of natural justice has now come to be recognized as being a part of the constitutional guarantee contained in Art. 14.” The rule in question was “both arbitrary and unreasonable,” and it also wholly ignored and set aside the Audi alterm partum rule and, thus, it violated Art 14.

In Cantonment Board, Dinapore v. Taramani in this case the Commanding-in-chief of the cantonment board cancelled the board’s resolution after giving it a hearing but not to the respondent to whom the permission had been given. The Supreme Court ruled that Commanding-in-chief ought to have given a hearing to the respondent as well before cancelling the permission given by the board. The Court observed: audi alteram partum is a part of Art. 14 of the Constitution”. The real affected party in fact was the party being ultimately affected by cancellation of the Board’s resolution. Because of Art.14 “no order shall be passed at the back of a person, prejudicial in nature to him, when it entails civil consequences.”  This is how Art 14 of the Constitution holds element of Natural justice into it. 
2 (b) Art. 21: Article 21 lays down that no person shall be deprived of his life or personal liberty except, according to ‘procedure established by law’. The most important word under this Article is ‘procedure established by law’ the question arises whether these words can be read as rules of natural justice. i.e. whether ‘law’ U/Art 21 can be read as principles of natural justice? To this question The Supreme Court ruled by majority that the word ‘law’ in Art. 21 could not be read as rules of natural justice. These rules (natural justice principles) were vague and indefinite and the constitution could not be read as laying down a vague standard. Nowhere in the constitution was the word ‘law’ used in the sense of abstract law or natural justice.

            The word ‘law’ was used in the sense of state (lex) made law and not natural law (jus). The expression ‘procedure established by law’ would therefore mean the procedure as laid down in an enacted law. On the other hand, Fazal Ali, J., disagreeing with the majority view, held that the principle of natural justice that ‘no one shall be condemned unheard’ was part of general law of the land and the same should accordingly be read into Art 21. However, later on majority opinion of A.K. Gopalan was discarded; this is because right to life does not mean mere animal existence. This right cannot be allowed to violate by law, which is wholly unreasonable, such law must be reasonable, fair and just. These terminologies are similar in content that of ‘due process’ clause of American constitution. Accordingly such law must prove substantive reasonableness as well as procedural reasonableness, later one requires such procedure should be ‘fair’, fairness requires reasonable notice, reasonable opportunity of hearing, legal representation, reasons for decision, etc. which are the fundamental component of natural justice.

            In Maneka Gandhi v. Union of India, SC by realizing the implications of Gopalan during 1975 emergency took ‘U’ turn and held that “Art 21 would no longer mean that law could prescribe some semblance of procedure however arbitrary or fanciful, to deprive a person of his personal liberty. It now means that the procedure must satisfy certain requisites in the sense of being fair and reasonable. The procedure “cannot be arbitrary, unfair or unreasonable”. The concept of reasonableness must be projected in the procedure contemplated by Art.21. The Court has now assumed the power to adjudge the fairness and justness of procedure established by law to deprive a person of his personal liberty. The Court has reached this conclusion by holding that Arts. 21, 19 and 14 are mutually exclusive, but are inter-linked.

            Bhagawati, J., “the principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades art 14 like a brooding omnipresence”. Thus, the procedure in Art. 21 “must be right, just and fair” and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Art. 21 would not be satisfied. In the same case Iyer, J., opined procedure in Art. 21, means fair, not formal, procedure; ‘law’ is reasonable law and not any enacted piece. This makes the words “procedure established by law” by and large synonymous with the ‘procedural due process’ in the U.S.A. this makes the right of hearing a component part of natural justice. Accordingly as result of this epoch making judgment in Maneka Gandhi case Court came to conclusion that ‘as the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding a passport under the passport Act. Although the passport Act does not expressly provide for the requirement of hearing before a passport is impounded, yet the same has to be implied therein’.

Supreme Court of India knowing the importance of ‘fair trial’ by liberal interpretation of Art. 21, made several provision for the protection of accused and provided adequate safeguards to defend his case. SC is of the opinion that conducting a fair trial for those who are accused of criminal offences is the cornerstone of democracy. Conducting a fair trial is beneficial both to the accused as well as to the society. A conviction resulting from an unfair trial is contrary to our concept of justice.

The Supreme Court has taken a gigantic innovative step forward in humanizing the administration of criminal justice by suggesting that free legal aid be provided by the State to poor prisoners facing a prison sentence. When an accused has been sentenced by a Court, but he is entitled to appeal against the verdict, he can claim legal aid: if he is indigent and is not able to afford the counsel, the State must provide a counsel to him. The Court has emphasized that the lawyer’s services continued an ingredient of fair procedure to a prisoner who is seeking his liberation through the Court’s procedure, Bhagwati, J., has observed in Hussainara Khatoon case. 

“Now, a procedure which does not make available legal service to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable, fair and just”. Accordingly in India free-legal aid to indigent or disabled person is considered to be essential component of Natural Justice. To ensure free legal aid to citizen of India Art 39A is inserted in part IV of the constitution which states that, The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Accordingly sufficient safeguard has been provided under Indian Constitution to get Legal representation.

2 (c) Art. 22: gives protection to arrested person against arrest and detention in certain cases which within its ambit contains very valuable element of natural justice,
 (1) No person who is arrested shall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a magistrate.

Article 22 (1) and (2) confers four following fundamental rights upon a person who has been arrested:
i) Right to be informed, as soon as may be, of the grounds for such arrest.
ii) Right to consult and to be defended by a legal practitioner of his choice.
iii) Right to be produced before the nearest magistrate within twenty-four hours of his arrest excluding the time necessary for the journey from the place of arrest to the Court of Magistrate.
iv) Right not to be detained in custody beyond the period of twenty four hours without the authority of the Magistrate.

2 (c) (i): Right to be informed of the Grounds of Arrest:
The object underlying the provision that the ground for arrest should be communicated to the person arrested appears to be this. On knowing about the grounds of arrest, the detenue will be in a position to make an application to the appropriate court for bail or move the High Court for a writ of habeas corpus. The Supreme Court observed that Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of Law prevails. Information as to the grounds of arrest provide reasonable opportunity to prepare a case by detenu, such grounds must be precise clear and unambiguous, if the grounds are not fully disclosed to accused than it would amount to denial of ‘fair hearing’ and results into violation of Natural Justice.
            In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the Supreme Court under Article 32 mentioning that he along with his companions had been arrested but had not been communicated the reasons or the grounds for arrest. It was stated that the arrested persons had been merely told that the arrest had been made “under sections which are bailable”. In the return filed by the State this assertion had neither been controverted nor had anything been stated with reference to it. One of the contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22 (1) of the Constitution.

            The Supreme Court observed that Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of Law prevails. The court further observed that the two requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise the second right, namely of consulting a legal practitioner of his choice and to be defended by him. Those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law.

2 (c) (ii): Right to consult and to be defended by Legal Practitioner:
 as we already dealt U/Art. 21 that principle of fair hearing requires adequate legal representation, this principle is carried forward by Art. 22 (1). Art 22(1) guarantees right of legal representation by advocate of his choice. The Article does not require the state to extend legal aid as such but only requires to allow all reasonable facilities to engage a lawyer to the person arrested and detained in custody. The choice of counsel is entirely left to the arrested person. The right to consult arises soon after arrest.

            In Nandini Satpathy v. P.L. Dani the Supreme Court observed that Article 22 (1) directs that the right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Article 22 (1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near-custodial interrogation. Moreover, the observance of the right against self incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyer's presence is a constitutional claim in some circumstances in our country also, and in the context of Article 20(3) is an assurance of awareness and observance of the right to silence. Nandini Satpathy's Case makes a clear departure from the literal interpretation stance of the Supreme Court in earlier cases. The case added an additional fortification to the right to counsel. The Supreme Court went a step forward in holding that Article 22(1) does not mean that persons who are not strictly under arrest or custody can be denied the right to counsel. The Court enlarged this right to include right to counsel to any accused person under circumstances of near-custodial interrogation.

            In Joginder Kumar V. State of U.P. The Supreme Court held that right of arrested person upon request, to have someone informed about his arrest and right to consult privately with lawyers are inherent in Articles 21 and 22 of the Constitution. The Supreme Court observed that no arrest can be made because it is lawful for the Police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest should be made by Police Officer without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.

The Supreme Court issued the following requirements:
 (1) An arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as practicable that he has been arrested and where is being detained.
(2) The Police Officer shall inform the arrested person when he is brought to the police station of this right.

(3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf.  In M.H.Hoskot V. State of Maharashtra it was observed by the Supreme Court that generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. Every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and unconstitutional. Pertinent to the point are two requirements: (i) service of a copy of the judgment to the prisoner in time to file an appeal and  (ii) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are State responsibilities under Article 21. Where the procedural law provides for further appeal these requirements will similarly apply. One of the ingredients of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. The Indian socio-legal milieu makes free legal service at trial and higher levels, an imperative processual piece of criminal justice where deprivation of life or personal liberty hangs in the judicial balance. Partial statutory implementation of the mandate is found in S. 304 Cr. P.C., and in other situations courts cannot be inert in the face of Article 21 and 39-A. Maneka Gandhi's Case has laid down that personal liberty cannot be cut out or cut down without fair legal procedure. Enough has been set out to establish that a prisoner, deprived of his freedom by court sentence but entitled to appeal against such verdict, can claim, as part of his protection under Article 21 and as implied in his statutory right to appeal, the necessary concomitant of right to counsel to prepare and argue his appeal.

If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional or statutory right of appeal, inclusive of special leave to appeal for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual 'for doing complete justice'. The inference is inevitable that this is a State's duty and not Government's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary the lawyer himself has to be reasonably remunerated for his services. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. That discretion resides in the Court. This is the present position relating to legal representation to detenu U/Art 22(1).
           
Art 22 (4) to (7) deals with preventive detention, Art. 22(5) provides same safeguards to person detained under Preventive Detention Laws, like Under COFEPOSA-1974, National Security-1980, etc In Nandlal Bajaj v. State of Punjab, the Court allowed legal representation to the detainee through a lawyer even when Section 11 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and Sec 8(e) of COFEPOSA- 1974 denied legal representation in express term, because state had been represented through a lawyer. The SC observed even when the law does not allow legal representation to the detenu, he is entitled to make such a request and the advisory board is bound to consider this request on merit, and Board is not preclude to allow such assistance when it allows the state to be represented through a lawyer.

2 (d): Art 32, 226 and 227:
            Art 32 and 226 of the constitution provides for constitutional remedies for violation of fundamental Rights and other legal rights respectively remedies, Under Art 32 and 226 can be exercised by issuing appropriate Writ, Direction and Orders. Writs in the nature of Habeas Corpus mandamus, prohibition quo-warranto and certiorari. Writ of Habeas Corpus is invoked to prevent unlawful detention and Mandamus is invoked to compel public official to perform his legal duties. Whereas Writ of  Prohibition and Certiorari are used to prevent Judicial and quasi-judicial bodies from acting without jurisdiction, in excess of jurisdiction, or where error of law apparent on face of record, violation of Fundamental Right and on the ground of violation of Principles of Natural Justice. However, in recent time it is new development that Writ of Certiorari can also be invoked against Administrative authority exercising adjudicatory function.

            In U.P.Warehousing Coproration V. Vijay Narain, in this case Court held that Writ of certiorari or prohibition usually goes to a body which is bound to act fairly or according to natural justice and it fails to do so. In the same manner where the decision is affected by bias, personal, or pecuniary, or subject matter as the case may be considered as violation of principle of natural justice. In such circumstances also writ of certiorari and prohibition can be issued both Under Art 32 and 226. In Manacle V. Dr. Premchand, speaking for SC, Gagendragadkar, J., remarked: “it is obvious that pecuniary interest, however small it may be in the subject matter of matter of the proceedings, would wholly disqualify a member from acting as judge. In Gullapalli Nageshwar Rao V. APSRTC the SC quashed the decision of the AP Govt., nationalizing Road transport on the ground that the Secretary of the Transport Department who was given a hearing was interested in the subject matter. Any order made in violation of principles of natural justice is void ab-initio and is liable to be annulled and cancelled. The Supreme Court in Nawabkhan Abbaskhan V.State of Gujarat held that an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent court holds such official act or order invalid or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid.

            In Parry &Co V. P.C.Pal it was observed that writ of certiorari is generally granted when a Court has acted without or in access its jurisdiction. It is available in those cases where a tribunal though competent to enter upon an inquiry, acts in flagrant disregard of the rules of procedure or violates the Principles of Natural Justice, where no particular procedure is prescribed. Where the tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where the conclusion on the very face of it is so wholly arbitrary and caprices that no reasonable person can ever have arrived at the conclusion interference under Art. 226 would be justified.

Apart from Art.32 and 226, it is Art 227 which can be used by High Court as another extraordinary weapon to prevent violation principles of natural justice in any of the lower courts or tribunals as the case may be. Art 227 runs as follows,

Art.227. Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) Call for returns from such courts;
(b) Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause   (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
High Court may in exercise of its power of superintendence issue direction, Order or writ in cases where it felt that there is violation of principles of natural justice accordingly it is one of the constitutional provisions framed in the spirit of principles of natural justice.

2 (e): Art. 311 and principles of Natural Justice:
Art 311 deals with Dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or a State, though Art. 310 of the constitution adapts ‘doctrine of Pleasure’ Art 311 constitution provides sufficient safeguards against misuse of such power, (1) of Art 311 declares that no person who is a member of civil service of the Union or an all-India service of State or holds a civil post under Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed and Clause (2) of Art.311 declares no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The word ‘reasonable opportunity of being heard’ includes all the dimension of principles of natural justice, accordingly no dismissal, removal, or reduction of rank of civil servant can be made without giving reasonable opportunity of being heard.

            In Punjab National Bank V. Kuna Bihar Mira, the following question was raised: when the inquiry officer, during the course of the disciplinary proceedings, comes to the conclusion that the charges of misconduct against an official are not proved, then can the disciplinary authority differ from that view and give a contrary finding without affording and opportunity to the delinquent officer The Court has ruled that natural justice demands that the authority which proposes to hold the delinquent officer guilty must give him a hearing. If the inquiry officer olds the charges to be proved then the report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action prejudicial to the delinquent officer.

            Art. 311 requires the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on charges framed against the officer. This is because before imposing the punishment, the employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

      Effect of failure of natural justice in proceedings contemplated U/Art. 311 is defends upon the following circumstances (i) where there is total violation of natural justice, i.e., where no opportunity of hearing has been given: where there has been no notice/ no hearing at all; and

(ii) Where a facet of natural justice has been violated, i.e. where there has been adequate opportunity of hearing, or where a fair hearing is lacking.

In situation (i), the order would undoubtedly be void. In such a case, normally, the authority concerned can proceed afresh according to natural justice.

In situation (ii), the Court has to see whether in totality of the circumstances, the delinquent servant did or did not have affair hearing. While applying the audi alterm partem rule, the ultimate and overriding objective must be kept in mind, to ensure a fair hearing and to ensure that there is no failure of justice. These prepositions were laid down by Hon’ble SC in State Bank of Patiala V. S.K.Sharma   these prepositions equally applies to inquiry affected by bias, enquiry officer should be a person with an open mind and he should hold an impartial domestic enquiry. He should not be based either in favour of the department or against the person against whom the inquiry is to be held, or prejudge the issue, or have a foreclosed mind, or have pre-determined notions.

An inquiry by a person who is biased against the charged officer is clear denial of reasonable opportunity. For example, one and the same person cannot be a judge and a witness in the same case. Therefore, the inquiry officer cannot also be a witness against the servant against whom he is holding the inquiry; such a procedure denotes a biased state of mind against the person concerned.

            In Kuldeep Singh V. Commissioner of Police, the SC held that the inquiry office as biased as he “did not sit with an open mind to hold an impartial domestic inquiry which is an essential component of natural justice as also that of “reasonable opportunity”, contemplated by Art. 311(2) of the Constitution.” The enquiry officer, said the Court, acted arbitrarily in the matter and found the employee guilty in such a coarse manner that it became apparent that he was merely carrying out the command from some superior officer who perhaps directed to “fix him up”.

However, merely because officer holding enquiry is not liked by servant there may not be possibility of bias and no proceeding in such circumstance said to be affected by bias, there is authority for the view that, where there are certain rules governing the procedure of enquires, the mere violation of such rules will not give a party a cause of action unless there has been, inconsequence, prejudice caused.

Another important question here is should an Advocate be Permitted in all Domestic Enquiries?
In the Board of Trustees V. Nadkarni the Supreme Court stated that in the past there was informal atmosphere before a domestic enquiry forum and that strict rules of procedural law did not hamstring the enquiry. We have moved far away from this stage. The situation is where the employer has on his pay rolls Labour Officers. Legal Advisors, Lawyers in the garb of employees and they are appointed as Presenting Officers and the delinquent employee pitted against such legally trained personnel has to defend himself.

However, the fact is that the weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer. It applies with equal vigour to all those who must be responsible for fair play. When the Bombay Port Trust Advisor and Junior Assistant Legal Advisor would act as the Presenting cum Prosecuting Officer in the enquiry, the employee was asked to be represented by a person not trained in law, was held utterly unfair and unjust. The employee should have been allowed to appear through legal practitioner and failure vitiated the enquiry. In Ghatge Patil Transport Pvt. Ltd. V B.K. Patel and others. Apart from the provisions of law, it is one of the basic principles of natural justice that the enquiry should be fair and impartial. Even if there is no provision in the Standing Orders or in Law, wherein an enquiry before the domestic mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to a denial of reasonable request to defend himself and the essential principles of natural justice would be violated. And in India Photographic Co V. Sumatra Mohan Kumar though the court should discourage involvement of legal practitioners in simple domestic enquiries, like disciplinary enquiries, for avoiding complications and delays, yet the court’s refusal of such representation would constitute failure of the enquiry itself. Principles of Natural Justice demands conceding to such a claim. No general rule can be laid down in this respect but the issue must be left for the consideration in the light of the facts and circumstances of each individual case. The view of Calcutta HC appears to be correct.

Further in enquiry when Principles of Natural Justice have not been observed, if the disciplinary authority comes to the conclusion that the inquiry was not made in conformity with principles of natural justice, it can also remit the case for further enquiry on all or some of the charges. The discretion in this regard should be exercised by the disciplinary authority for adequate reasons to be recorded in writing. A further enquiry may be ordered, for example, when there are grave lacunae or procedural defects vitiating the first enquiry and not because the first enquiry had gone in favour of the delinquent officer. In latter type of cases, the disciplinary authority can, if it is satisfied on the evidence on record, disagree with the findings of the Inquiring Authority.

In this context the following observations of the Rajasthan High Court in Dwarka Chand V. State of Rajasthan are relevant: If we were to hold that a second departmental enquiry could be ordered after the previous one has resulted in the exoneration of a public servant the danger of harassment to the public servant, would in our opinion, be immense. If it were possible to ignore the result of an earlier departmental enquiry, then there will be nothing to prevent a superior officer, if he were so minded, to order a second or a third or a fourth or even a fifth departmental enquiry after the earlier ones had resulted in the exoneration of a public servant.

Art 311 (2) provides invaluable safeguards to civil servants but at the same time provides some exception to requirement of natural justice, under following circumstance reasonable opportunity of being heard is not essential to civil servants under Union of India or a State,

(i) Where a person is dismissed, removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge.

(ii) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such an enquiry.

(iii) Where the President or the Governor as the case may be is satisfied that in the interest of the Security of the State, it is not expedient to hold such enquiry.

Referring to Article 311 (2) (b), the judges have pointed out that sometimes by not taking prompt action might result in the situation worsening and at times becoming uncontrollable. This could also be construed by the trouble makers and agitators as a sign of weakness on the part of the authorities. It would not be reasonably practicable to hold an inquiry where the Government Servant terrorizes threatens or intimidates disciplinary authority or the witnesses to the effect that they are prevented from taking action or giving evidence against him. It would not be reasonably practicable to hold the enquiry where an atmosphere of violence or general indiscipline and insubordination prevails.
This is about constitutional provision embedded with principles of natural justice.

 3. 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.
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*** Miss Kavita S. B and Mr. Shivaraj S.H
# M. P. Jani, Indian Constitutoional Law, VI Ed, Reprint (2011), (Gurgaon; Lexis Nexis Butterworth’s Wadhwa Nagpur), at, p. 963.
# AIR 1999 SC 564.3.
3. AIR 1978 SC 597.
4 AIR 1986 SC 1571
# AIR 1992 SC 61
# A.K.Goplan v. Union of Inida,
# AIR  1976 SC 597.
# Ibid, at, p 621
# Ibid
# State of Punjab v. Baldev Singh, AIR 1999 SC 2378
# Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369
# AIR 1969 SC 1014
# In re, Madhu Limaye  AIR 1969 SC 1014
# AIR 1978 SC 1025 
# AIR 1994 SC 1349
# AIR 1978 SC 1548
# AIR 1978 SC 597
# AIR 1980 SC 840
# AIR 1957 SC 425
# AIR 1959 SC 308
# AIR 1974 SC 1471
# B.P.Benarjee, Writ Remedies Iv Ed.,(2007) reprint-2008, (Nagpur; Lexis Nexis, Butterworth’s Wadhwa),p.no.217  (1998) 7 SCC 84
# AIR 1996 SC 1669.
# B. Martian V. Union of India., AIR1976 Kant.144
# Kumaion Mandal vikas Nigam Ltd. V. Gera Shankar Pant, AIR 2001 SC 24
# AIR 1999 SC 677
# Veerabadreshwar Rao & Oil Mill Vs Collector, Central Excise, AIR 1966 SC 1348 
#  30. 1983) ILJ.p1
# 1984 II LLJ Bombay High Court, p. 121
# 1984 I LLJ  Calcutta HC p. 471
# AIR 1959, Raj. 38
# Swadeshi Cotton Mills V. Union of India on 13 January, 1981

“Rules of natural justice can operate only in areas not covered by any law validly made. If a statutory provision either specifically or by inevitable implication excludes the application of the rules of natural justice then the Court cannot ignore the mandate of the Legislature. Whether or not the application of the principles of natural justice in a given case has been excluded in the exercise of statutory power depends upon the language and basic scheme of the provision conferring the power, the nature of the power the purpose for which it is conferred and the effect of that power”

The  author can be reached at: shivaraj@legalserviceindia.com

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