Sharpened Niceties And Nuances Of Natural Justice

Sanjiv-ShahAdvocate Sanjiv Shah has explained the entire law on “audi alteram partem” in a simple and clear manner. He has referred to all the important judgements on the topic and highlighted their nuances. He has also clarified the misconceptions that prevail with regard to the legal principles

1) Litigating Counsel’s safest haven and refuge which normally faces the least resistance from the adjudicating seat is urging the ground of natural justice. Somewhere at the back or corner of the arguing Counsel’s mind there is a comfortable feeling that, in a worst scenario and as a last resort, more particularly, where case on merits is dicey, a judge, howsoever, hostile vis-a-vis other pleas will uphold submission of contravention of golden rules of justice. Such approach of Counsel is also seen in conferences with clients while planning and framing strategies for arguments depending upon facts and circumstances surrounding a particular case. Indeed this is also conference weapon to persuade and convince clients that they have an ace up their sleeve, probably just enough to save them from an adverse result.

2) However, the way the issue of natural justice is dissected and coalesced in the latest judgment of Apex Court in STATE OF UTTAR PRADESH v. SUDHIR KUMAR SINGH [MANU/SC/0773/2020], point of natural justice will have to be deeply mulled, analyzed and reviewed before it is argued in Court.

3) Thus, in this article, it would be advantageous and useful to remove ambiguities, misconceptions and superfluity which plaques concept of fundamental justice in the light of aforementioned case law. History as enunciated in STATE OF UTTAR PRADESH v. SUDHIR KUMAR SINGH [MANU/SC/0773/2020] as to development of jurisprudence on high pedestal maxim of "audi alteram partem" is adopted for purpose of this exposition wherever necessary with appropriate modifications.

4) At outset, it would be most necessary to advert to vital and intrinsic aspects ingrained and embodied in the words "natural justice" to master and get into the flow of justice itself as elucidated by authorities categorized as "locus classicus":-

a) in primary sense, it encompasses two very innate rules namely, (i) no one shall be a judge in his own case including philosophy that justice should not only be done, but manifestly and undoubtedly be seen to be done and judges like Caesor’s wife should be above suspicion; and (2) no decision shall be given against a party without affording him a reasonable hearing [A.K.KRAIPAK  v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19];

b) aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. In other words, they do not supplant the law of the land but supplement it [KRAIPAK  v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19];

c) subsequently, a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably [KRAIPAK v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19];

d) later, recording of reasons was termed and wrapped up as a pillar of natural justice [SIEMENS ENGINNERING v. UOI (1976) 2 SCC 981 [PARAGRAPH 6]; MANEKA GANDHI  v. UNION OF INDIA (1978) 1 SCC 248, PARAGRAPH 66]. Considerations which compel recording of reasons are summarized as:- i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision-making. In this regard, a distinction has been drawn between ordinary Courts of law and Tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency, whereas an executive officer generally looks at things from the standpoint of policy and expediency [MUKHERJEE v. UOI (1990) 4 SCC 594 (CONSTITUTION BENCH), PARAGRAPH 34]. However, in RAIPUR DEVELOPMENT AUTHORITY v. CHOKHAMAL (1989) 2 SCC 721, PARAGRAPH 34, distinction was made between public and private law and explicated that recording of reasons cannot be extended to all cases of private law like arbitration which is forum for settling private disputes unless arbitration agreement provides such a wholesome requirement. This portion of aforementioned precedent is now watered by a enactment of Section 31(3) of Arbitration and Conciliation Act, 1996 as noted in DYNA TECHNOLOGIES PVT LTD v. CROMPTON GREAVES LTD, MANU/SC/1765/2019, PARAGRAPH 33 unless parties agree that no reasons be given or arbitral award is founded on consent/compromise [ANAND BROTHERS P LTD v. UNION OF INDIA (UOI) (2014) 9 SCC 212, PARAGRAPH 9]. Furthermore, when a statutory authority frames an order all reasons justifying same must be incorporated in the order itself and cannot be supplemented/improved by additional grounds in affidavit or otherwise analogized as "orders are not like old wine becoming better as they grow older"  [ANAND BROTHERS P LTD v. UNION OF INDIA (1978) (CONSTITUTION BENCH) 1 SCC 405, PARAGRAPH 8].

e) in the course of years, many more subsidiary rules came to be added to the tenet of natural justice [KRAIPAK  v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19];

f) applicability of rule cannot be circumscribed to quasi judicial enquiries, but also cover administrative matters/actions inasmuch as at times unjust decisions in latter situations may have more far reaching effect [KRAIPAK  v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19] involving civil consequences [STATE OF ORISSA v. DR (MISS) BINAPANI DEI AIR 1967 SC 1269];

g) theory of natural justice are not embodied rules [KRAIPAK  v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19];

h) extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula and thus its invocation depends upon the nature of jurisdiction conferred on the               administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case [KRAIPAK v. UNION OF INDIA (1969) 2 SCC 262, PARAGRAPH 19; UNION OF INDIA v. P.K. ROY AIR 1968 SC 850].

i) audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice or to make the law "lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation". Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism [MANEKA GANDHI v. UNION OF INDIA (1978) 1 SCC 248, PARAGRAPH 84]. Nonetheless, Courts cannot read in limitations to the jurisdiction conferred by the statutes, in the absence of a challenge to the provision itself when the language of the Act clearly allows for an ostensible violation of the principles of natural justice including the principle that a person cannot be a judge in his own cause relying on UNION OF INDIA v. TULSIRAM PATEL [1985] 3 SCC 398, 479 ; AIR 1985 SC 1416, 1462 [UOI v. VIPAN KUMAR(2005) 9 SCC 579]
j) Magarry J described natural justice "as a distillate of due process of law" vide Fontaine v. Chesterton (1968) 112 S G 690 which must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalized hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications [MANEKA GANDHI v. UNION OF INDIA (1978) 1 SCC 248, PARAGRAPH 59]. In MANGILAL v. STATE OF MADHYA PRADESH (2004) 2 SCC 47, crucial aspect of legal justice was didactically postulated by Top Court by holding that the application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment [SWADESI COTTON MILLS v. UNION OF INDIA AIR 1961 SC 818] founded on cardinal rationale that ultimate aim is to secure justice or to prevent miscarriage of justice.

k) It is no doubt a principle of natural justice that a quasi judicial Tribunal cannot make any decision adverse to a party without giving him an effective opportunity, but from this it does not mandatorily and peremptorily mean that aggrieved is, as a matter of right, entitled to a personal hearing. The said opportunity need not necessarily be by personal hearing; a written representation may suffice. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the Tribunal [MADHYA PRADESH INDUSTRIES LTD. v. UNION OF INDIA AIR1966 SC 671, PARAGRAPH 11];

l) as a general rule, hearing should be afforded before a decision is taken and not afterwards, in that, post-decisional hearing does not sub-serve ends of justice owing to fact that authority embarks post decisional hearing with a closed mind and there is hardly any possibility of getting proper consideration of the representation at such post mortem hearing [TREHAN v. UOI (1989) 1 SCC 764, PARAGRAPH 12] drawing inspiration from its earlier decision in SHEPHERD v. UOI AIR 1988 SC 686 holding that "it is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose";

m) if tenet of natural justice is transgressed at first stage, it is no consolation or remedy for the harmed that such a fatal infirmity can be cured by an appellate authority and cannot be equated with corrected initial hearing; instead of a fair trial  followed by appeal, procedure is reduced to unfair trial followed by a fair trial. In other words, failure of natural justice at trial stage cannot be healed by sufficiency of same at appeal stage more particularly, where injury caused by initial order cannot be obliterated by correction on subsequent appeal notwithstanding its widened scope and ambit. A glaring and manifest example is the immediate and far reaching damage inflicted on valuable reputation of member belonging to a highly respected and public trusted profession jeopardizing his dignity and standing among fellow members of the profession built up so scrupulously, conscientiously and diligently which cannot be operationally salvaged by ostensible and so-called overall substitute named as "appeal" [ICAI v. RATNA (1986) 4 SCC 537, PARAGRAPHS 17 AND 18]. Similar  approach was adopted in TIN BOX v. CIT (2001) 9 SCC 725 negativing conclusion of lower authorities that it is not necessary to aside matter to assessing officer [AO] seeing that what  finally counts is opportunity at the level of AO.

n) consequences of contravention of law of substantial justice by an administrative authority restricting fundamental right of a citizen or infringing a fundamental freedom is that such a order is ab initio void and a nullity meaning of no legal efficacy since inception [NAWABKHAN v. STATE OF GUJARAT (1974) 2 SCC 121 PARAGRAPHS 15, 20, 22; SHREERAM DURGA PRASAD AND FATECHAND NURSING DAS v. SETTLEMENT COMMISSION (1989) 1 SCC 628-order of no value]. However, a void, invalid and inoperative order will continue to operate as effective for its ostensible purpose as the most impeccable of orders unless declared as such by competent Court or body and when so pronounced it collapses automatically and not binding on the dissatisfied party. A declaration merely reflects existing state of affairs and does not quash to produce new situations [STATE OF PUNJAB v. GURDEO SINGH (1991) 4 SCC 1, PARAGRAPHS 5, 6, 7];

o) In SBI v. JAH DEVELOPERS (2019) 6 SCC 787, the Highest Court of the land, after adverting to a number of precedents advocated that right to be presented by a lawyer is not a part of natural justice and everything would turn on facts and circumstances of a particular case and special features of justice [MANU/SC/0769/2019, PARAGRAPHS 73, 74]. Possibly, in case where complexity and complicated law is involved, Court may permit presence of lawyer [KRISHNA CHANDRA TANDON v. UOI (1974) 4 SCC 374, PARAGRAPH 11; CRESCENT DYES AND CHEMICALS LTD v. RAM NARESH TRIPATHI (1993) 2 SCC 115, PARAGRAPH 12].
p) In STATE OF CHHATISGARH v. DHIRJO KUMAR SENGAR (2009) 13 SCC 600, Supreme Court affirmed commonplace law that frauds vitiate all solemn acts [RAM CHANDRA SINGH v. SAVITRI DEVI (2003) 8 SCC 319; TANNA AND MODI v. CIT (2007) 7 SCC 434 AND RANI ALOKA DUDHORIA v. GOUTAM DUDHORIA (2009) 13 SCC 569] and under such circumstances, principles of natural justice are not required to be complied with [MANU/SC/1106/2009, PARAGRAPHS 21, 22].

q) In NEW INDIA ASSURANCE COMPANY LTD v. NUSLI NEVILLE WADIA (2013) 4 SCC 465, Top Court laid down that cross-examination is a indefeasible right it being integral part and parcel of the principles of natural justice following TRIPATHI v. STATE BANK OF INDIA (1984) 1 SCC 43; LAKSHMAN EXPORTS LIMITED v. COLLECTOR OF CENTRAL EXCISE (2005) 10 SCC 634. Constitution bench of Supreme Court in STATE OF MP v. CHINTAMAN SADASHIVA VAISHAMPAYAN AIR 1961 SC 1623 endorsed aforesaid dictum.

5) The most fundamental law initially laid down by Apex Court concerning flouting of natural justice is that contravention itself of universal justice is prejudice in itself to the aggrieved party and no evidence de hors such infringement is to be led to prove such non-observance except where facts are admitted/uncontroverted/unchallenged in which case it would be futile for the Court to issue writ inasmuch as unexceptionally no different conclusion is possible [KAPOOR v. JAGMOHAN  (1980) 4 SCC 379, PARAGRAPH 24] and giving another opportunity would only be an incantation or ritual resulting in perversity and stretching the parameters of fair play to illogical and exasperating limits so as to amount to unnatural expansion of aforesaid canon [ECIL v. KARUNAKAR (1993) 4 SCC 727, PARAGRAPH 30]. Indeed referring the matter back to the authority may be unnecessary or what is referred to as the "useless formality" test [DHARAMPAL SATYAPAL v. CCE (2015) 8 SCC 519, PARAGRAPH 40]; as the English judge pithily put it "…………………such an opportunity would have availed him nothing" [CINNAMOND v. BRITISH AIRPORTS AUTHORITY (1980) 1 WLR 582, 593 referred to in DHARAMPAL SATYAPAL v. CCE (2015) 8 SCC 519, PARAGRAPH 39].

6) Thereafter, in AGARWAL v. SBI (2006) 8 SCC 776, PARAGRAPH 39, Supreme Court noted the paradigm shift in judicial approach with regard to the transgression of natural justice. It observed that a mere technical/small violation will not make order a nullity unless some real prejudice is caused to complainant since the tenet is a not an unruly horse and cannot yoked into with a strait jacket formula.

7) Further, in DHARAMPAL SATYAPAL v. CCE (2015) 8 SCC 519, PARAGRAPH 42, the Highest Court of the land put its imprimatur on the proposition of law that the decisional authority possesses no jurisdiction to presume that no prejudice would be caused if a notice to show cause is not issued to troubled person and such a prerogative is available only to the Courts at a later stage to answer the question whether any useful purpose would have been served by  service or otherwise of the notice and consequently, authority cannot refuse to issue a notice on that foundation to overreach fulfillment of natural justice .   

8) Furthermore, in STATE BANK OF PATIALA v. S.K. SHARMA (1996) 3 SCC 364, PARAGRAPH 33, Top Court evolved further parameters apropos substantial justice in the following manner:-

a) if the provision of law is of a substantial nature, norm of  natural justice will have to be satisfied irrespective of prejudice or theory of substantial compliance, on the other hand, in case of a procedural provision, purported lack of justice will have to pass critical test of real prejudice to grievance holder [PARAGRAPH 33, POINTS 2 AND 3];

b) if a statute mandates affording an opportunity to affected party, person in position has no option, but adhere to fair play in decision making [PARAGRAPH 33, POINT 3];   

c) if the procedure is mandatory then it must be examined whether it is in interest of public or party proceeded against. If latter, it is vital to survey whether delinquent party expressly or impliedly by his conduct waived it and if he has/could not/have done so Court will give appropriate directions including remanding lis to file of lower authority [PARAGRAPH 33, POINTS 4(b)];   

d) distinction ought to be made between cases of no opportunity/hearing/notice and inadequate opportunity whereby in the former situation, order will be invalid/nullity/void and authority will have to redraw the order following enshrined law, whereas in latter circumstances, some real prejudice will have to be shown [PARAGRAPH 33, POINT 5]

e) elementary rule of justice may have to be curtailed in case of state/public interest and scales balanced between imperatives of fair hearing and such interests [PARAGRAPH 33, POINT 7].

9) In addition, UNION OF INDIA v. ALOK KUMAR (2010) 5 SCC 349 PARAGRAPH 89, nature and character of the "prejudice" to be demonstrated by distressed party was explicated. Accordingly, an apprehension/reasonable suspicion is not enough and as a matter of fact, an element of prejudice must exist or a definite inference of likelihood of prejudice flowing from such fairness default. Undeniably, criterion which govern field of "bias" encompassing standard of proof/tangibility required to vindicate "bias" can on all fours be extended to "prejudice" in present context of natural justice and therefore, apply mutatis mutandis. Albeit, it may be clarified that "rule of bias" as such pose different considerations than that obtain to project "prejudice" against backdrop of audi alteram partem.

10) At this stage, it is indispensable to examine as to how aforestated well entrenched precepts have been applied and moulded by Apex Court under various fact situations and particular cases by reviewing and evaluating case laws hereinafter.

11) In INSPECTOR OF POLICE, CHENNAI v. GNANESWARAN (2013) 3 SCC 594, non-furnishing of copy of First Information Report [FIR] to accused/informant (Section 154(2) of Code of Criminal Procedure, 1973)] [informant did not raise any grievance regarding non-supply of copy of FIR nor accused sought copy of same] does not vitiate registration of FIR inasmuch as such a requirement is directory and no case of prejudice is made out. It also advocated that matters of prejudice have to be judged with a broad vision, looking at the substance and uninfluenced by technicalities [MANU / SC / 0041 / 2013, PARAGRAPH 7].

12) In UNION OF INDIA v. MUSTAFA AND NAJIBAI TRADING CO (1998) 6 SCC 79, despite Section 124 of Customs Act, 1962 positing issue of show cause notice [SCN] to owner of goods prior to confiscation of goods, Apex Court held that giving of show cause to owner is directory and, in that view of the matter, without any prejudice being revealed to owners who were never in the picture except when they surfaced for the first time before the High Court by way of a writ petition questioning impugned order [invocation of doctrine of acquiescence, estoppel, waiver or non-challenge or non-denial or admission of facts], confiscation order under Section 111(d) and 111(e) is not invalidated by that reason alone. Moreover, Section 124 is a penalty in rem enforceable against goods and not in personam imposable with reference to person concerned and therefore, former penalty can be exacted without reference to owner of goods and hence it would be substantial compliance if SCN is issued to persons in knowledge of and responsible for contravention and who can explain the default like owner of vessel, managing director of owner of vessel being a company, local agent of owner of vessel and that at Karachi and certain other persons [MANU/SC/0423/1998, PARAGRAPH 36].

13) In ECIL v. KARUNAKAR (1993) 4 SCC 727 [CONSTITUTION BENCH], Supreme Court held that where punishment order is impaired by dint of flouting of principles of natural justice namely, non-furnishing of report of disciplinary committee, proper relief will be to direct company to reinstate the employee with liberty to management to suspend the employee and continue the disciplinary proceedings from the stage of furnishing report. If employee ultimately succeeds in fresh inquiry and is ordered to be reinstated, subjects like payment of back wages and other benefits from the date of dismissal to date of reinstatement is left to discretion of deciding authority. It was also clarified that the reinstatement pursuant to breaking of law of justice by virtue of failure to provide report ought to be treated as reinstatement and no more for the purpose of fresh inquiry [MANU/SC/0237/1994, PARAGRAPH 7].

14) In S. B. PATIL v. SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY (2020) 2 SCC 595, notwithstanding Rule 7(3)(b) of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 prescribes a seven-day notice period to member for inviting objections to show cause by Speaker against proposed disqualification from assembly, Apex Court propounded that number of days granted by Speaker to reply is not the relevant factor, but to see whether there was an effective opportunity afforded and applying said criteria whilst affirming disqualification orders of Speaker in spite of notice of briefer periods of 3/4 days handed out by latter vis-a-vis statutory period of 7 days taking cognizance of relevant facts such as awareness of disqualified members of impending notice of motion seeking vote of confidence and whip issued by their party, urgency of the matter arising out of the interim orders of the Top Court and conduct of members before and/or at time of disqualification proceedings. It also took note of cases in RAVI NAIK v. UOI 1994 SUPP 2 SCC 641, 653 wherein a three day notice was struck down, whereas in B. L. JARKHIHOLI v. BSY (2011) 7 SCC 1 even a two day notice was countenanced to vindicate trite law that principles of natural justice is not a strait jacket formula [MANU/SC1558/2020, PARAGRAPHS 73, 74]. However, in D. SUDHAKAR v. D.N. JEEVARAJU (2012) 1 SCALE 704, brief notice of three days coupled with non-supply of copies of affidavit relied upon by Speaker to disqualified members and undue haste shown by Speaker in disposing of disqualification applications exhibiting lack of bonafides due to partisan attitude of Speaker were sufficient to hold that action of Speaker was in violation of doctrine of substantial justice vitiating impugned order. 

15) If a disciplinary enquiry by a domestic Tribunal is conducted by a legally trained person who is a presenting-cum-prosecuting officer appointed by employer, denial of such a reciprocal and corresponding right to delinquent employee who seeks permission to engage a legal practitioner constitutes flouting of principles of natural justice thereby vitiating order [BOARD OF TRUSTEES OF THE PORT OF BOMBAY V.  DILIPKUMAR RAGHAVENDRANATH NADKARNI (1983) 1 SCC 124; MANU/SC/0184/1982, PRAGRAPH 12].

16) Pronouncement in GORKHA SECURITY SERVICES v. GOVT (NCT OF DELHI) (2014) 9 SCC 105, propagates that, in a blacklisting case despite the fact serious consequences ensue, once a show cause notice is issued and opportunity to reply is afforded, natural justice is satisfied and it is not necessary to give oral/personal hearing in such cases subject to caveat that adjudicating authority applies his judicial mind to all issues raised by affected person relying on PATEL ENGINEERING LIMITED v. UOI (2012)11 SCC 257 [PARAGRAPH 20]. In this connection, reference may also be made to UNION OF INDIA v. JESUS SALES CORPORATION (1996) 4 SCC 69, a case of waiver/reduction of pre-deposit in relation to admission of appeal for hearing under the Imports and Exports (Control) Act, 1947 where similar view was expressed.

17) In ALAGAAPURAM  MOHANRAJ v. TAMIL NADU LEGISLATIVE ASSEMBLY (2016) 6 SCC 82, members of legislative assembly behaved in a unruly manner on floor of the house while in session and as a result, privileges committee suspended them for 10 days from the next assembly session without supplying copy of or permitting to them see video recording. Apex Court set aside privileges committee’s order in default of fundamental justice inasmuch as such an act resulted in denial of reasonable opportunity to the affected to explain and displace as to why the video recording does not contain any evidence/material for recommending action against all or some of them or to rebut that the video recording should have been interpreted differently [MANU/SC/0162/2016, PARAGRAPH 41, 42]. Moreover, it is equally well established that instead giving full copy of damaging documents/materials/evidences/proofs supplying only synopsis thereof does not tantamount to granting reasonable opportunity to afflicted party [STATE OF PUNJAB v. BHAGAT RAM  (1975) 1 SCC 155, MANU/SC/0447/1974, PARAGRAPH 8].

18) In RATNESH KUMAR CHOUDHARY v. INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES (2015) 15 SCC 151, probationer was dismissed by Director from service in pursuance of complaint received by vigilance department without giving to him copy of complaint, vigilance report and other documents despite being specifically asked for. Apex Court reiterated well settled law that where report is the "motive" of termination meaning thereby no detailed investigation is carried out to find out and ascertain truthfulness of allegations to establish misconduct as opposed to "foundation" of sacking whereby master is satisfied of misconduct of delinquent employee constituting substratum of termination, contravention of substantial justice in such latter "punitive cases" is fatal and hence removal from service legally unsound and untenable [MANU/SC/1168/2015, PARAGRAPH 18].

19) In UMA NATH PANDEY v. STATE OF U.P (2009) 12 SCC 40, High Court’s adverse order passed allowing revision petition without granting any opportunity in form of notice to aggrieved parties was set aside owing to fact it transgressed rule of commonsense justice. However, it further remarked that whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated [MANU/SC/0401/2009, PARAGRAPH 17] and consequently, matter was remitted to High Court for consideration afresh after issuance of notice to affected parties.

20) IN BOARD OF DIRECTORS, HPTC v. K.C. RAHI (2008) 11 SCC 502, employee avoided service of notice and from written representations lodged by him it could be inferred that he was aware of proceedings and hence his act of not participating in departmental enquiry was deemed to result in waiver of principles of natural justice and thus estopped from advancing plea of non-compliance of fair hearing.

21) In ASHIWIN S MEHTA v.  UOI (2012) 1 SCC 83, pursuant to a scheme for sale of attached properties of notified parties whose object was to realize maximum price, Custodian sold shares of Apollo Tyres at Rs.90/- per share with approval of Special Court rejecting, in breach of Section 9A(4) of Special Court Act and pivot of natural justice, request of notified party to give them 48 hours to secure a better offer culminating in realization of a lesser price to detriment of notified party and consequently, order of Special Court was set aside whereby inter alia specious plea of Custodian that any deferment of sale of shares would have resulted in share market falling was held to be unfounded and unsound inasmuch as market was already aware of bulk sale of shares on account of advertisement published by Custodian precluding any possibility of further volatility in price of aforementioned shares.

22) In P.D. AGRAWAL v. STATE BANK OF INDIA (2006) 8 SCC 776, Top court sustained contention that if charges of misconduct  are severable and guilt can be supported by findings and holdings of one charge then order of punishment of removal from service cannot be set aside on the superstructure that natural justice was infringed because disciplinary authority while differing from findings of enquiry officer apropos other charge which was not proved did not issue a show cause notice to the delinquent employee to enable him to contradict adversial view of the disciplinary authority in respect of the other charge, despite holding that there was a trespass of fair trial following ratios of PUNJAB NATIONAL BANK v. KUNJ BEHARI MISHRA (2006) 4 SCC 153; STATE OF ORISSA. v. BIDYABHUSHAN MOHAPATRA AIR 1963 SC 779-CONSTITUTION BENCH; BINNY LTD v. WORKMEN (1972) 3 SCC 806 [MANU/SC/8122/2006, PARAGRAPH 16]; SAWARN SINGH v. STATE OF PUNJAB  (1976) 2 SCC 868 [There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision-MANU/SC/8122/2006, PARAGRAPH 16(f)].

23) In GURMEJ SINGH v. STATE OF PUNJAB (2009) 12 SCC 440, harmful observations made and directions given by High Court without issuance of show cause notice to prosecute investigating officer of the case at least for offences for which another ASI was charged or preparing false documents or wrongly confining victim in the process of dacoity through robbery committed by ASI were struck down and order vacated as invalid due to inherent defect by Apex Court observing that no person can be condemned unheard rooted in golden axiom that justice must not only be done, but seen to be done while not terminating proceedings since there was no final decision of the case which can be taken in fresh proceedings.

24) In NOBLE SYNTHETICS LTD v. COLLECTOR OF CENTRAL EXCISE (2005) 3 SCC 674, where lower authorities during process of adjudication of a show-cause notice issued inter alia for breaking  Rule 173 B (4) of the Central Excise Rules, 1944 did not rely upon reports/opinion of experts, but gave independent findings and conclusions in their orders de hors such reports/test results and on the other hand, Assessee did not bring on record any cogent evidences to overturn inimical holdings of experts, the Highest Court of land held that there is no question of not fulfilling maxim of fundamental justice by lower authorities so as to upset impugned orders [ MANU/SC/0218/2005, PARAGRAPH 12]. In similar vein, is the Top Court’s judgment in KANWAR NATWAR SINGH v. DIRECTORATE OF ENFORCEMENT (2010) 13 SCC 255 in context of Foreign Exchange Management Act, 1999. 

25) HARYANA SURAJ MALTING LTD v. PHOOL CHAND (2018) 16 SCC 567, Highest Court of land held that an ex-parte award passed by Court/Tribunal under Industrial Disputes Act, 1947 encroaching theory of fundamental justice is a nullity and not binding and can be recalled under incidental/ancillary/inherent powers of Court/Tribunal where there is sufficient reason for non-appearance provided application is made within reasonable time although lodged after award became enforceable.

26) In B.A. LINGA REDDY v. KARNATAKA STATE TRANSPORT AUTHORITY (2015) 4 SCC 515, under Section 102 of Motor Vehicles Act, 1988 Karnataka State Government was empowered in public interest to modify any approved transport scheme after taking into account objections, both factual and legal, made inter alia by state transport undertaking and private operators which government did bereft of considering exceptions projected  much less according reasons as to why such representations were accepted/rejected which act was not countenanced by Supreme Court observing that modification process contemplated under Section 102 was a quasi-judicial function warranting passing of reasoned order being bloodline and soul of idiom of natural justice after mulling the objections to avoid arbitrariness adhering to tenet expounded in KRISHNA SWAMI v. UNION OF INDIA 1992 (4) SCC 605 [CONSTITUTION BENCH] [MANU/SC/1199/2014, PARAGRAPHS 18 TO 22].

27) In DHAKESWARI COTTON MILLS LTD v. COMMISSIONER OF INCOME TAX AIR 1955 SC 65, Tribunal’s order was interfered and matter remanded to its file for fresh disposal on the premise there was a infraction of legal justice for the reason that Tribunal neither disclosed to Assessee what information was supplied by departmental representative much less afforded any chance to traverse same nor accepted all the material that the Assessee wanted to adduce to fortify its case.

28) In KSHITISH CHANDRA PURKAIT V. SANTOSH KUMAR PURKAIT [1997] 5 SCC 438, Apex Court advocated that that in (exceptional) cases where the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100, Code of Civil Procedure, 1908 to formulate substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point [PARAGRAPH 10].

29) In NEW DELHI TELEVISION LTD v. DCIT AIR 2020 SC 2177, Supreme Court noted there was a default in complying with rules of fair play, in that, notice for reopening original assessment under Section 148 of Income Tax Act, 1961 did not mention second proviso to Section 147 depriving Assessee of chance to meet such a premise who was taken by surprise by its [second proviso] finding a place in order rejecting objections against back assessment action of revenue more specifically, when such a proviso confers competency to reassess income of Assessee backwards up to 16 years [MANU/SC/0357/2020, PARAGRAPHS 40 TO 43].

30) In TRIBHUVANDAS BHIMJI ZAVERI v. COLLECTOR OF CENTRAL EXCISE (1997) 11 SCC 276, non-furnishing by Assessing Officer of list of inventory comprising jewellery items compiled by raiding party during search and seizure operations under Income Tax Act, 1961 which has bearing on penalty mulcted for infringement of provisions of Gold Control Act, 1968, now repealed, constituted violation of concept of audi alteram partem.

31) In C. B. GAUTAM v. UNION OF INDIA [1985] 3 SCC 545, even in the absence of an express provision to grant an opportunity of hearing to dissatisfied party prior to passing of an order under the provisions of Section 269UD of Income tax Act, 1961 for purchase by the Central Government of an immovable property agreed to be sold on an agreement to sell, Highest Court of land while eschewing too strict and literal construction read such a sine qua non into Chapter XX-C lest Article 14 of Constitution of India would be breached and it is no answer to purportedly plug/substitute aforestated unambiguous loophole that Section 269UD mandates that acquisition order is to contain reasons in writing for such purchase [MANU/SC/0673/1992, PARAGRAPH 30].

32) In APPROPRIATE AUTHORITY v. VIJAY KUMAR SHARMA (2001) 10 SCC 739, Apex Court confirmed order of High Court propounding that where there is gross non-observance of thesis of substantial justice while exercising power under Section 269UD of Income tax Act, 1961 for compulsory purchase of immovable property by Central Government there is no question of remitting of matter to lower authorities for reconsideration and order ought to be set aside.

33) In ITAT v. DCIT (1996) 7 SCC 454, Supreme Court sustained High Court’s decision taking the view that there was failure of natural justice when Income Tax Appellate Tribunal refused to grant adjournment to revenue inasmuch as matter was already adjourned 11 times on earlier occasions, President of Tribunal had come from Delhi and one member of Special Bench hearing the matter had come from Mumbai and declined to take on record written submissions sought to be tendered by department [MANU/SC/1379/1996, PARAGRAPH 12].

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7 comments on “Sharpened Niceties And Nuances Of Natural Justice
  1. PRV Raghavan F.C.A. says:

    The Article “Sharpened Niceties And Nuances Of Natural Justice” by Adv, Mr. Sanjiv Shah is a well-researched and well-presented one. Pls keep up the good work, Sanjiv.

  2. Vikas A Manohar says:

    The Article is Sheer Poetry

  3. K B BHATIA says:


  4. Sumiit B Nagpal says:

    Brilliant and well researched.

  5. RAMESH VORA says:


  6. S R Wadhwa says:

    A very well researched article on the important issue of natural justice.

  7. Ajay Wadhwa says:

    Just brilliant!

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