[2009] 4 S.C.R 374

UMA NATH PANDEY AND ORS. +.

STATE OF U.P. AND ANR.

Criminal Appeal No. 471 of 2009

MARCH 16, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,

JJ.]

...

Natural justice - Rule of audi alteram partem - High c Court allowed criminal revision petition filed by respondent no. 2 without issuing notice to appellants and to other parties - Appeal against- Held: Order passed by High Court was wholly vitiated - It is but essential that a party should be put on notice of the case before any adverse order is passed against him - There was violation of the principles of natural justice - Matter D remitted to High Court for consideration afresh after issuance > of notice to the concerned respondents before it - Notice. •

The High Court, by the impugned judgment, allowed the revision petition filed by respondent no.2 without issuing

E notice to the appellants and to the other parties.

In appeal to this Court, it was contended that the principles of natural justice were violated by the High Court and that prejudice was caused to the appellants.

Allowing the appeal, the Court

HELD:1.1. Natural justice is another name for commonsense justice. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. [Paras 6, 19) [378-E; 385-E]

G 1.2. The expressions "natural justice" and "legal . " justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn

H 374

UMA NATH PANDEY AND ORS. V. 375

STATE OF U.P. AND ANR.

purpose, natural justice is called in aid of legal justice. A Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication.

It supplies the omissions of a formulated law. [Para 7] [378-

G-H; 379-A]

1.3. Over the years by a process of judicial B interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of C man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' that is, 'no man shall be a judge in his own cause'. The form 'aliquis D non debet esse judex in propria causa quia non potest esse judex at pars', that is, 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party' and the form 'nemo potest esse simul actor etjudex', that is, 'no one can be at once suitor E and judge' are also at times used. The second rule is audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui F aliquid statuerit parte inaudita alteram actquam licet dixerit, ud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' or in other words, as it is now expressed, G 'justice should not only be done but should manifestly be seen to be done'. 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 H

A by virtue of its inherent defect, but the proceedings are • not terminated. [Para 17] [383-C-H; 384-A-B]

1.4. The audi alteram partem rule says that no one should be condemned unheard. Notice is the first limb of

B this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the ... absence of a notice of the kind and such reasonable

~ opportunity, the order passed becomes wholly vitiated. It c is but essential that a party should be put on notice of the case before any adverse order is passed against him.

[Para 8] [379-B-D]

1.5. The matter is remitted to the High Court to

D consider the matter afresh after issuance of notice to the respondents in the Criminal Revision Petition which will

stand restored. [Para 20] [386-F]

Maneka Gandhi v. Union of India 1978 (2) SCR 621 and MC. Mehta v. Union of India (1999(6) SCC 237 - referred to.

E Cooper v. Wandsworth Board of Works (1863) 143 ER 414; Ray v. Local Government Board (1914) 1KB160; General Council of Medical Education & Registration of UK. v.

Sanckman (1948) 2 All ER 337; Board of Education v. Rice

F 1911 AC 179:80 LJKB 796; Spackman v. Plumstead District Board of Works 1985 (10) AC 229:54 LJMC 81; Drew v. Drew and Lebura 1855(2) Macg. 1.8; James Dunber Smith v. Her Majesty the Queen 1877-78(3) App. Case Arthur John Specman v. Plumstead District Board of Works 1884-85(10) App. Case 229; Vionet v. Barrett 1885(55) LJRD 39, 41; G Hookings v. Smethwick Local Board of Health 1890(24) QBD .. 712; Ridge v. Baldwin (1963(1) WB 569; Fairmount Investments Ltd. v. Secretary to State for Environment 1976 LR 1255 and Regina v. Secretary of State for Home Affairs Ex Pa rte osenball 1977 (1) WLR 766 - referred to.

UMA NATH PANDEY AND ORS. V. 377

STATE OF U.P. AND ANR.

....... y ...

Case Law Reference A

(1863) 143 ER 414 referred to Para 8

(1914) 1 KB 160 referred to Para 11

(1948) 2 All ER 337 referred to Para 11 B 1911 AC 179:80 LJKB 796; referred to Para 12

..,

1985 (10) AC 229 referred to Para 13 ... 1855(2) Macg. 1.8 referred to Para 16

1877-78(3) App. Case referred to Para 16 c

1884-85(10) App.Case 229 referred to Para 16

1885(55) LJRD 39, 41 referred to Para 16.

1890(24) QBD 712 referred to Para 16 D '

(1963(1) WB 569 referred to Para 16

1978 (2) SCR 621 referred to Para 16

1976 LR 1255 referred to Para 16

1977 (1) WLR 766 referred to Para 16 E

(1999(6) sec 237 referred to Para 18

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 471 of 2009

F From the Judgement and Order dated 23.08.2007 of the High Court of Judicature at Allahabad, Crl. R.No. 2163 of 2007.

V.K. Shukla, N.K. Neeraj, K.K. Mohan, for the Appellants.

~~- S.G. Hussnain, Rachna Gupta, T.N. Singh, Manoj Dwivedi, G Gunnam Venkateswara Rao, for the Respondent.

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a ... .. learned Single Judge of the Allahabad High Court allowing the Revision Petition filed by respondent no.2. Though various points were urged it is not necessary to go into those in detail as the revision petition was allowed even without issuing notice to the B present appellants and to the other parties.

3. Learned Single Judge only heard the counsel for respondent No.2 and passed the impugned order. ...

4. Learned counsel for respondent No.2 submitted that the c High Court has taken note of the applicable legal position and, therefore there is no scope for interference.

5. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, to what extent any prejudice has been caused. It may be D noted at this juncture that in some cases it has been observed ~

that where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory" can be pressed into service.

6. Natural justice is another name for commonsense justice.

Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way.

Justice is based substantially on natural ideals and human

F values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

7. The expressions "natural justice" and "legal justice" do ..,. " not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Naturnl justice relieves legal justice from

H unnecessary technicality, grammatical pedantry or logical

prevarication. It supplies the omissions of a formulated law. As A Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.

8. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between 8

the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise C and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it D is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained si9nificance and shades with time. When the historic document was made E at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], F the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou? hast thou not eaten of the tree

.__,, y whereof I commanded thee that thou shouldest not eat". G

9. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

10. Principles of natural justice are those rules which have H

A been laid down by the Courts as being the minimum protection •• .... of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from

B doing injustice.

11. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in • Ray v. Local Government Board (1914) 1 KB 160 at p.199:83 ,.....

LJKB 86) described the phrase as sadly lacking in precision. In c General Council of Medical Education & Registration of UK.

v. Sanckman (1943 AC 627: (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt 'to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal D interest in the controversy, and further that it should give 'a full .. and fair opportunity' to every party of being heard.

12. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education

v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C. observed as follows:

"Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or ..

offices of State the duty of deciding or determining

F questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the

G facts. I need not and that in doing either they must act in y~ good faith and fairly listen to both sides for that is a duty lying upon ever; one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. .. Th A Board is in the nature of the arbitral

H tribunal, and a Court of law has no jurisdiction to hear

~ appeals from the determination either upon law or upon A fact But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus

and certiorari".

13. Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to C their view". To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81 ), where the learned and noble Lord Chancellor observed as follows:

"No doubt, in the absence of special provisions as to how D the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their E view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within F the meaning of the statute if there were anything of that sort done contrary to the essence of justice".

14. Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity G of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done'.

15. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

16. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as 'universal justice'. In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works (1884- 85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In Vionet v.

Barrett (1885(55) LJRD 39, 41 ), Lord Es her, MR defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health (1890(24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's case (supra) chose to define natural justice as 'fundamental justice'. In Ridge v.

Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with 'fair-play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967(2) 8617, 530),

Lord Parker, CJ, preferred to describe natural justice as 'a duty A to act fairly'. In fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as 'a fair crack of the whip' while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affrurs Ex Pa rte Hosenball ( 1977 ( 1) WLR 766) B preferred the homely phrase 'common fairness'.

17. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of C natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first D rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be E a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in F continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he G who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48b, 52-a) or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. H

A 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 procedings 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.

18. What is known as 'useless formality theory' has received consideration of this Court in M. C. Mehta v. Union of India ( 1999(6) SCC 237). It was observed as under:

"Before we go into the final aspect of this contention, we c would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that

D the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or ~

that the result will not be different, even if natural justice is ,,_

followed (See Malloch v. Aberdeen Corpn: (1971 )2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn v.

E Keele University: (1971) 2 All ER 89; Cinnamond v. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R v. Ealing Magistrates' Court, ex p.

Fannaran (1996 (8) Admn. LR 351, 358) (See de Smith, ,.

Suppl. P.89 (1998) where Straughton, L.J. held that there F must be 'demonstrable beyond doubt' that the result would have been different. Lord Woolf in Lloyd v. McMohan ( 1987

(1) All ER 1118, CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice.

The New Zealand Court in McCarthy v. Grant (1959 NZLR G

1014) however goes halfway when it says that (as in the ~- case of bias), it is sufficient for the applicant to show that there is 'real likelihood-not certaintyof prejudice'. On the other hand, Garner Administrative Law (81h Edn. 1996. pp.271-72) says that slight proof that the result would have H been different is sufficient. On the other side of the

argument, we have apart from Ridge v. Baldwin ( 1964 AC A 40: (1963) 2 All ER 66, HL), Megarry, J. in John v. Rees ( 1969 (2) All ER 274) stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the 'useless B formality theory' is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that 'convenience and justice are often not on speaking terms'. More recently, Lord Bingham has deprecated the 'useless formality theory' in R. v. Chief c Constable of the Thames Valley Police Forces, ex p.

Cotton (1990 IRLR 344) by giving six reasons (see also his article 'Should Public Law Remedies be Discretionary?" 1991 PL. p.64). A detailed and emphatic criticism of the 'useless formality theory' has been made D much earlier in 'Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, sth Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be E decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530) says that while futile writs F may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the

applicant can be compelled to prove that the outcome will G be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, H

A there is a considerable unanimity that the courts can, in • ,,

exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma (1996 B

(3) SCC 364), Rajendra Singh v. State of M.P (1996 (5) sec 460) that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In c the former case, it can be waived while in the case of the latter, it cannot be waived.

We do not propose to express any opinion on the correctness or otherwise of the 'useless formalitY theory' and leave the matter for decision in an appropriate case, D inasmuch as the case before us, 'admitted and indisputable' facts show that grant of a writ will be in vain ....

as pointed by Chinnappa Reddy, J."

19. Natural justice is the essence of fair adjudication,

E deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.

20. Above being the position, we set aside the impugned order and remit the matter to the High Court to consider the

F matter afresh after issuance of notice to the respondents in the Criminal Revision Petition No.2163 of 2007 which will stand restored.

21. The appeal is allowed.

B.B.B.

Appeal allowed. , __