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VI. One who hears must decide

As a general rule "he who hears should decide". In Gullapalli Nageswara Rao v. APSRT Corpn.; setting aside the order passed by the State Government, Subha Rao, J. (as he then was) observed;

This divided responsibility is destruction of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.

[Gullapalli Nageswar Rao v. A.P.S.R.T. Corpn., AIR 1959 SC 308]

VII. Even a prisoner can have his friend

The right of representation by a lawyer is not considered to be a part of natural justice and it cannot be claimed as of right unless the said right is conferred by Statute. In Pett v. Greyhound Racing Assn, Lord Denning observed;

"When a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He has also a right to speak by his counsel or solicitor........ Even a prisoner can have his friend." Thus where the evidence is voluminous or where complicated questions of law are involved or where a man's reputation or livelihood is at stake, he may not be able to defend himself effectively, he may be nervous, confused, tongue-tied, incoherent or wanting in intelligence. In these circumstance, he should not be denied legal assistance."

[Pett v. Greyhound Racing Assn, (1968) 2 All ER 545 (549)]

1.    Speaking order or Reasoned Decisions

i. A speaking order means an order speaking for itself. In other words it means that an order must contain reasons in support of it. The party affected must know why and on what grounds an order has been passed against him. This is one of the cardinal principles of natural justice.

ii. it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is like the principles of audi alteram parterm, a basic principle of natural justice which must conform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.

[Seimens Engineering v. Union of India, AIR 1976 SC 1785.]

iii. Ordinarily those reasons are required to be communicated to the aggrieved party unless there is justification for non-communication. But it may be that in a given case the reasons may not be communicated in public interest. But if an order or action is taken without any reason the same is arbitrary and unreasonable and requires to be quashed and set aside. 

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1.    Audi Alterm partem

The second principle of natural justice is audi alteram partem, which means " hear the other side" or "no man should be condemned unheard" or both sides must be heard before passing any order. In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him. This includes two elements.

(i)      Notice

(ii)     Hearing

Before and any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. Any order passed without giving reasons is against the principles of natural justice and void ab initio,

Even if there is no provision in the Statute about giving of notice, if the order in question adversely affects the rights of an individual, the notice must be given. The notice must be clear, specific and unambiguous and the charges should not be vague and uncertain. Whether a prejudice is caused or not is a question of fact and it depends on the facts and circumstances of the case.

Moreover the notice must give a reasonable opportunity to comply with the requirements mentioned therein.

ii. 24 hours time to dismantle a structure invalid

To give twenty four hours notice time to dismantle a structure alleged to have been in dilapidated condition is not proper and the notice is not valid.

[State of i Kv. Haji Wali Mohd, AIR 1972 SC 2538]

iii. The second requirement of audi alteram partem is that the person concerned must be given an opportunity of being heard before any adverse action is taken against him.

The historic case of Ridge v. Baldwin [( 1962) 2 All ER 834] has been described as the magna carta of natural justice conforming to the second requirement of natural justice. In the instant case a Chief Constable was dismissed from service by a Watch Committee without notice and enquiry. The House of Lords held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice. The order of dismissal was, therefore held to be illegal.

iv. Similarly, in the State of Orissa v. Binapani Dei, AIR 1967 SC 1269, the petitioner was compulsorily retired from service on the ground that she had completed 55 years of age. No opportunity of hearing was given to her before the impugned order was passed. The Supreme Court set aside the order as it was violative of the principles of natural justice.

V. However, the rules of natural justice are not embodied rules and they cannot be imprisoned within the strait jacket of a rigid formula. The contents of natural justice vary with the nature of the enquiry, the object of the proceeding, the scheme and policy of the statute, the nature of the power conferred upon the authority, the right or interest sought to be affected, etc. If reasonable opportunity and fair hearing is afforded to the party and the order has been passed by an authority or officer in accordance with law, it cannot be set aside or quashed on the ground of mere technicality or by artificial expansion of the principles. That there cannot be any hard and fast rule about the manner in which hearing should be given to the affected party has been laid down in Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka, (1991) 2 SCC 604. Whether the said opportunity of being heard should be by written representation or by personal hearing depends on the facts of each case and ordinarily it is in the discretion of the Tribunal.

 

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II.      Mala fide exercise of administrative powers - Contrary to natural justice

State action must be based on valid relevant principles applicable alike to all similarly situated and it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Art. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the later comprehends the former. Both are inhibited by Art 14 and 16 of the Constitution.

[E.P. Royappa v. State of Tamil Nadu, and another, AIR 1974 SC 555.]

III.    Colourable exercise of powers - Contrary to natural justice

When an authority acts from some improper motive or ulterior consideration, under the colour of exercising statutory power, his act is said to have been done in the colourable exercise of power.

Thus, for example, the services of a Government servant may be terminated by a simple order of termination in the exercise of statutory, power, but if the intention is something else, i.e. imposing punishment of removal from service in the guise of a simple order it would be a colourable exercise of power.

When, therefore, a Government servant alleges that the order of compulsory retirement before the age of superannuation, especially during the pendency of disciplinary proceedings is mala fide and violative of service rules, it is sufficient for the Court to make out a prima facie case for the issue of Rule nisi.

[S. C. Sen v. State of W.B., 1968 Lab IC 731 (Cal.)]

IV.    Perverse Finding - Contrary to natural justice

A perverse finding is a finding which is not supported by evidence and is impelled by arbitrariness or prejudice. If a finding of the Inquiry Officer is one which is not supported by evidence or is such that no rational or reasonable man can demonstrably reach on the evidence, it will be set aside on the ground that it is perverse.

[Central Bank of India v. P.C. Jain, 1969 II LLJ 377]

Where, in arriving at his findings, the Inquiry Officer has excluded materials which are relevant and/or taken into consideration materials which are irrelevant and/or based his findings on conjectures, surmises or suspicion, the findings will be held to be perverse.

[A.J. Vaswani v. Union of India 1983 II LLJ 122] 

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1.     I. Bias or interest - Contrary to natural justice

The first requirement of natural justice is that the judge must be impartial and neutral and free from bias. He cannot act as judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. If the judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as judge and the proceedings will be vitiated. There should be no pecuniary, personal or official bias. Mukharjee, J. in Secretary to Govt. Transport Deptt v. Munnusway, AIR 1988 SC 2232 has laid down that "a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias."

Rule against bias is based on three maxims.

(i)      No man shall be a judge in his own cause.

(ii)     Justice should not only be done but manifestly and undoubtedly be seen to be done.

(iii)   Judges, like Caesor's wife should be above suspicion.

[Halsbury's Laws of England]

II.      Pecuniary Interest -

Speaking for the Supreme Court, Gajendragadkar J, (as he was then) held in Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425 that "it is obvious that pecuniary interest however small it may be in a subject matter of the proceedings, would wholly disqualify a member from acting as a judge."

Chief Justice Gajendragadkar reconstituted the Bench on objection being taken on behalf of the witnesses in court on the ground that the Chief Justice who was a member of the Bench was also a member of the Cooperative Society for which the disputed land had been acquired.

[Jeejeebhoy v. Asst. Collector of Thane, AIR 1965 SC 1096]

III.    Personal Bias - Case-Law

A departmental enquiry was held against 'A' by 'B. As one of the witnesses turned hostile, 'B left the enquiry, gave evidence against 'A', resumed to complete the enquiry and passed an order of dismissal. The Supreme Court observed that "the rules of natural justice were completely discarded and all cannons of fair play were grievously violated by 'B.

[State of UP v. Mohd Nooh, AIR 1958 SC 86]

IV.    Official bias -

Mere "office" or "policy" may not necessarily be held to disqualify an official from acting as an adjudicator unless there is total nonapplication of mind on his part and he has acted as per dictation of the superior authority instead of deciding the matter independently or has pre-judged the issue or has taken improper attitude to uphold the policy of the department so as to constitute a legal bias.

According to the Commercial Tax Officer, the petitioner was not liable to pay tax, and yet, he referred the matter to his superior officers, and on instructions from him imposed tax. The Supreme Court set aside the decision.

[Mahadayal v. CTO, AIR 1961 SC 82]

V.      Test of Bias

The Court laid down the test in the following words;

In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.

[Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425] 

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CCS Rules & Principles of Natural justice 

1.    Rules of Natural Justice - Scope not unlimited

The scope of the Rules of Natural Justice is not unlimited.

The Rules of Natural Justice should not be stretched too far. Only too often the people have done wrong seeking to invoke the rules of natural justice so as to avoid the consequences.

[Rt. Hon. Lord Denning]

Natural justice prescribes only a minimum standard of fair procedurel and this minimum cannot be bloated into a rigmarole of technicalities to vitiate the inquiry somehow or other. To do so would not be a natural justice but on the other hand unnatural or perverted justice.

[Bholanath v. Management of D.T.U., SLR (1971) 2 Delhi 240.]42

2.    Principles of natural justice cannot be elevated to the position of Fundamental Rights

Though the principles of natural justice must be given due importance, care must be taken against any over-emphasis. These principles cannot be elevated to the position of Fundamental Rights.

[Union of India v. Col. J. N. Sinha 1971 SC 40.]

3.    Principles of Natural Justice - traditional English Law

The traditional English law recognises two principles of natural justice :

(1) Nemo Debet esse judex in propria sua causa : No man shall be a judge in his own cause or the deciding authority must be impartial and without bias.

(2) Audi Alteram partem : Hear the other side, or both the sides must be heard, or no man should be condemned unheard or that there must be fairness on the part of the deciding authority.

Due to rapid growth of constitutional as well as administrative law, a third principle of natural justice has been evolved;

(3) Speaking orders or Reasoned decisions : All orders should be supported by reasons.

4.                Four principles of Natural Justice Case-Law

The quintessence of the rules of natural justice in its journey through centuries has shed much of its glories and is now crystallised into four principles of justice namely :

(a) opportunity for both the contending parties to be heard;

(b) hearing before an impartial Tribunal so that no man can be judge of his own cause;

(c) decision made in good faith; and

(d) an orderly course of procedure

[Saxby and Parmer (India) Ltd. v. Third Industrial Tribunal, (1962) II LLJ 52 (56) (Calcutta High Court).]

 

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1.    NATURAL JUSTICE

It is an important concept in administrative law. It is known as "substantial justice", "fundamental justice", "universal justice" or "fair play in action".

ii. As laid down in the case of A.K. Kraipak v. Union of India, AIR 1970 SC 150, the aims of rules of natural justice is to secure justice į or to put it negatively to prevent miscarriage of justice. These rules operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.

iii. Generally, no provision is found in any statute for the observance of the principles of natural justice by the adjudicating authorities. But it is well settled that where the exercise of power results in civil consequences to citizens, unless the statute specifically rules out, the principles of natural justice would apply, has been held in State of Orissa v. Dr. Binapani, AIR 1967 SC 1269; Maneka Gandhi v. Union of India, 1978 (1) SCC 248; Mohinder Singh Gill v. Chief Election Commr. AIR 1978 SC 851, Union of India, v. Tulsiram Patel, AIR 1985 SC 1416; Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.

iv. It is imperative that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.

2.        Against whom Natural Justice may be enforced

It is settled law and there is no dispute that the principles of natural justice are binding on all the courts, judicial bodies and quasijudicial authorities. But whether these principles are applicable to administrative authorities also has been settled in the Kraipak case wherein it has been held that "if the purpose of rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries."

3.        Rules of Natural Justice not rigid rules

The Supreme Court in R.S. Dass v. Union of India has observed :

It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends on the setting and the background of statutory provision, nature of right which may be affected and the consequences which may entail. Its application depends upon the facts and circumstances of each case.

[R.S. Dass v. Union of India, AIR 1987 SC 593]

ii. The essential logic and justification of the principles of natural justice has been brought about by Krishna Iyer, J, thus :

Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the forms, features and fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case can be u exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt.........that is the conscience of the matter"

[The Chairman, Board of Mining Examination v. Ramjee, AIR 1977 SC 965.] 

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1.    Where enquiry need not be held

While the Constitution has provided protection to the civil servants against the doctrine of removal at pleasure, even where a civil servant is removed, dismissed or reduced in rank by way of punishment, the second proviso to Art. 311 (2) lays down that there shall be no need for an enquiry or for giving notice :

(i)      where a person is dismissed or removed or reduced in rank on the ground of conduct 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 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.

ii. The Constitution Bench in Tulsi Ram Patel explained the effect of each of the three clauses of the second proviso to Art. 311 (2) as below –

(i)      By reason of C! (a) major penalty is not the automatic result of a conviction on a criminal charge. Conviction of offence of trivial nature may not call for any departmental punishment.

(ii)     As far as Cl (b) is concerned the satisfaction must be that it is not "reasonably practicable" to hold the inquiry. It must be inferred that holding of the enquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.

(iii)   The expression "in the interest of the security of the State" shows that the question that is relevant under CI (c) is not whether the security of the State has been affected but whether there is even likelihood of acts taking place which could jeopardies the security of the State.

[Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398]

2.        Reliefs and Remedies :

Since the provisions of Art. 311 (1) and (2) are mandatory, a dismissal or removal contrary to these clauses is void and inoperative. In respect of actions taken under the second provisio to Art 311 (2) departmental as well as judicial remedies are available. Departmental remedies are provided under the rules concerned relating to different services while judicial remedy under Art. 32, 136 or 226 can be availed under the well established principles of judicial review of administrative action.

 

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7. Reduction in Rank - Reduction in rank means the degradation in rank or status of the officer directed by way of penalty. As regards the penal nature of the reduction the Supreme Court in Union of India v. Purshottam AIR 1956 Punj. 207, affirmed by Purshottam v. Union of India, AIR 1958 SC 3 applied the test of right to the rank in question in the same manner as the right to the post test in the case of dismissal or removal. Reduction in rank for administrative reasons does not attract Art. 311 (2)

A reduction in rank for administrative reasons will not amount to punishment and in this case the principle of reasonable opportunity to defend is not applicable. The order of reversion simpliciter will not amount to reduction in rank or a punishment.

A servant who is officiating on a higher rank in a leave vacancy and is reverted on the return of the permanent incumbent, cannot say that he has been reduced in rank within the meaning of Art. 311.

[Sangamlal Dubey v. Director of Education, AIR 1957 All 70]

8. When termination of service or reduction in rank amounts to punishment

As the provision of reasonable opportunity to defend can be invoked only when the removal, dismissal or reduction in rank is by way of penalty, the task before the court is to determine as to when an order for termination of service or reduction in rank is made as and by way of punishment.

The Supreme Court has laid down two tests for determining whether the dismissal etc., is by way of punishment :

(i)      Whether the servant had a right to the post or rank, or,

(ii)     Whether he had been visited with evil consequences.

[P.L. Dhingra v. Union of India, AIR 1958 SC 36; State of Punjab V. Balbir Singh, AIR 1977 SC 629]

ii. One test for determining if the termination of a servant is by way of punishment is to ascertain whether he had a right to the post because every termination brought about otherwise than according to his terms of contract of employment or any rule governing the service will per se be as and by way of punishment.

Such a termination will operate as a forfeiture of his right to the post and evil consequences of loss of pay and allowances. Similarly, if the Government servant has a right to a particular rank, then the very reduction from the rank will operate as a penalty for he will then lose the emoluments and privileges of that rank.

iii. With regard to the termination of a service of a permanent employee of the Government the case of P. L Dhingra has been modified by the majority judgement in Moti Ram Deka v. N.E. Frontier Railway.

Gajendragadkar (J): A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must per se amount to his removal and so if by r. 148 (3) or r. 149 (3) such a termination is brought about, the rule clearly contravenes Art. 311 (2) and must be held to be invalid.

[Moti Ram Deka v. N.E. Frontier Railway, AIR 1969 SC 600]

iv. These principles have been reiterated in Central Inland Water Transport Corporation v. Brajanath Ganguly, (1986) 3 SCC 156; West Bengal State Electricity Board v. Desh Bandhu Ghosh (1985) 3 SCC 166; Uptron India Ltd. v. Shammi Bhan JT 1998 (3) SC 47 

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1.    Where Article 311 (2) will not be attracted

i. Compulsory Retirement: The justification of Compulsory Retirement is in the public interest, to weed out the dead wood and maintain a high standard of efficiency and initiative in service. As a facet of doctrine of pleasure it gives an absolute right and not merely a discretion. But the test is public interest. If it is proved that an order is devoid of public interest but made with the remark that the officer has outlived his utility, the provisions of Art. 311 (2) will be attracted.

[Saksena v. State of M.P, AIR 1964 SC 449]

2. Abolition of post : When a post is temporary the abolition of such post raises no problem because appointment to a temporary post confers no right upon the employee to hold that post. The provisions of Art. 311 (2) is not plainly attracted when such employee is simply "discharged" on the abolition of the post.

[Champaklal v. Union of India, AIR 1964 SC 1854]

The case however becomes different where the abolition of a post is mala fide and has been resorted to as a mask for penal action in order to avoid Art. 311 (2).

[State of Haryana v. Saugar, AIR 1976 SC 1199]

3. Superannuation : It is competent for the Government to fix any age for superannuation and to raise or reduce it from time to time. There is no cause of action if an order raising the age is modified subsequently thus affecting those who had benefited from the previous order. It cannot be urged that enforcement of the reduced age amounts to removal.

[Bishnu Narain v. State of U.P, AIR 1965 SC 1567]

ii. The Supreme Court held that a memorandum raising the age of retirement from 55 to 58 years was only an executive instruction and not a rule under Article 309. It did not confer any legal right on the persons covered by it. No legal action can be founded on it. Thus a Government servant could be compulsorily retired any time after he has reached the age of 55 years under the memorandum, and the courts would not examine the reasons for doing so unless mala fides is imputed to the authorities.

[State of Assam % B. K. Das, AIR 1972 SC 1252.]

4. Termination of Service in accordance with Service Rules

A termination of service according to the terms of service or service rules will not amount to termination within the meaning of clause (2) of Article 311 of the Constitution.

A railway employee was discharged from service after giving one month's notice according to the terms of his agreement of service. It was held that Article 311 (2) did not apply.

[ Gopal Krishna v. Union of India, AIR 1954 SC 632.]

5. Probationer :

Briefly speaking a probationer is a person who has been appointed on trial and has no right to the post held by him. As such, discharge of a probationer at any time before he is confirmed without any imputation and without any penal consequences other than limitation of service, would not attract Art. 311 (2).

6. Discharge of probationer on ground of misconduct attracts Art. 311 (2)

Though appointment to a post on probation gives to the person so appointed no right to the post, if the discharge is ordered on ground of misconduct or the like and is attended with penal consequences or a stigma is attached to the order, Art. 311 (2) must be complied with.

[State of Punjab v. Sukhraj, AIR 1968 SC 1089]

Where the Government has by contract or under the rules, the right to terminate the employment of probationers, without going through the procedure prescribed in Art. 311 (2) the Government may choose to punish the servant and if the termination of service is founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and requirements of Article 311 must be complied with.

[P. L. Dhingra v. Union of India, AIR 1958 SC 36]

 

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1.    What Reasonable Opportunity means

i. In several decisions of the Supreme Court the question has arisen : What does the expression "reasonable opportunity" mean? It has been said that what is reasonable is not necessarily what is best but is fairly appropriate under all the circumstances of the cases. It implies an opportunity to deny the guilt alleged, to establish innocence by cross-examining the prosecution witnesses and by examining himself and his witnesses.

ii. The Supreme Court of India has said that reasonable opportunity envisaged to the Government servant by the provision contained in Art. 311 (2) includes;

(i) an opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based.

(ii) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witness in support of his defence.

[Khem Chand v. Union of India, AIR 1958 SC 300]

2.    Personal hearing part of reasonable opportunity

i. The right to argue is a part of personal hearing and since personal hearing is part of reasonable opportunity, denial of right to argue is violative of Art 311 (2) of the Constitution.

[C.S. Sharma v. State of U.P, AIR 1961 All 45]

ii. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view.

[Gullapallai Nageswar Rao v. APSRTC, AIR 1959 SC 308] 

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I.     JUDICIAL PRONOUNCEMENTS

1. No Removal By Subordinate Authority

i. 'Subordinate' means subordination in rank and not in respect of function. Where the order of dismissal is made by an authority subordinate to the appointing authority, the unconstitutionality is not cured by the fact that the order of dismissal is confirmed, on appeal by the proper authority.

[Suraj Narain Anand v. North West Frontier Province, AIR 1942 FC 3]

ii. The power to dismiss cannot be delegated

The appointing authority cannot delegate his power of dismissal or removal to a subordinate authority, so as to destroy the protection afforded by the Constitution unless the Constitution itself authorises such delegation by other provisions.

[Ramchandra v. DIG, AIR 1957 MP 126]

iii. It is not required that dismissal or removal must be ordered by the very same authority who made the appointment or by his direct superior. There is a compliance with the clause if the dismissing authority is not lower in rank or grade than the appointing authority.

iv. As held in Venkateswarrao v. State of Madras, AIR 1954 Madras 1043 the dismissal by an authority superior to the appointing authority is not bad. There have been judicial pronouncements to the effect that clause (i) of Art. 311 has no application where the punishment is of reduction in rank. Since Art. 311 (1) does not refer to reduction in rank, the authority to impose such punishment need not be the appointing authority as held in Babaji Charan Rout v. State of Orissa, 1982 Lab IC 603 (Ori) and Const. Nyadar Singh v. Union of India, AIR 1988 SC.

v. Since the clause (1) of Art. 311 does not apply to any other punishment, the question of laws or rules or administrative instructions regarding other punishments or disciplinary action in relation to such punishment being violative of Art. 311 (1) cannot arise - although such actions are liable to be tested against Arts 14 and 16 of the Constitution.

2. Reasonable Opportunity to defend

i. In relation to the three major punishments of dismissal, removal and reduction in rank, Clause (2) of Art 311 mandates the compliance of natural justice. It provides the procedural essentials to be followed before the dismissal, removal or reduction in rank of an employee. An opportunity to defend has to be given to the civil servant at the stage of enquiring of charges against him. This opportunity to defend himself, does not, it will be noted, apply to all cases of termination of service by the Government. The protection under Article 311 (2) can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.

ii. The inquiry contemplated by Art 311 (2) is what is generally known as a departmental enquiry and the constitutional requirements for a proper inquiry within the meaning of Art 311 (2) are two fold :

(a) The civil servant must be informed of the charges against him.

(b) He must be afforded a reasonable opportunity of being heard in respect of those charges. 

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I.                PRINCIPLES OF NATURAL JUSTICE

What are all may be stated as the Principles of Natural Justice?

(a) No one can be condemned unheard

(b) No one can be a judge in his own case

(c) Justice should not only be done but should manifestly appear to have been done

(d) Final order must be speaking order

What is Audi Alteram Pattern? And what is the protection granted under the principle of natural justice?

Audi Alteram Pattern is basically a protection against arbitrary administrative action comprises within itself a number of rights. This rule implies that the accused has a right to

(a) know the charge

(b) inspect documents

(c) know the evidence

 (d) cross examine witnesses

(e) lead evidence

In essence, the protections granted under Article 311 (2) of the Constitution as well the CCA Rules are codification of the above principle of natural justice.

II.              Rule of Bias

What are all the important rule of bias in the disciplinary cases?

Generally, three kinds of bias are considered as important:

a) Personal Bias – One may be personally interested in the outcome of the case. If one is required to act as the complainant as well as the decision-making authority, the outcome is likely to be biased

b) Pecuniary bias – A person who has a monetary interest in an issue should not deal with the case. If one is a share holder in a company, it would be improper for him/her to decide whether a contract should be given to that company or some other company.

c) Bias of subject matter – One who has certain strong notions/ views about certain subjects might not be suitable for deciding issues relating to that subject. For example, one having strong male chauvinistic views, may not be suitable for dealing with issues relating to harassment of women employee

 

Whether the Rule of bias must be taken in consideration at all stages?

The Rule of bias should be borne in mind at the time of appointment of Inquiry Officer and dealing with the request of the Charged Officer for change of Inquiry officer.

What are all the exemptions in the rule of bias?

It is well established that the rule of bias has the following exemptions:

❖ Waiver - Where the party concerned has waived its right to question the proceedings for violation of the rule of bias, the issue cannot be raised subsequently. 

❖ Necessity - there may be situation when a person may not be able to withdraw from the decision-making process due to reasons of necessity (like connected or close relative of the any one related to the enquiry)

❖ Statutory Power - No other person can be substituted in his place. And it may sometimes happen that no other member is available to take the place and functioning.

Notwithstanding the above exemptions, it is essential that no person having any stake in the outcome of the disciplinary proceedings act as the Inquiry Authority nor exercise the powers of Disciplinary Authority. Justice should manifestly appear to have been done

What is the principle of natural justice requiring in the process of disciplinary proceedings by issuing speaking orders?

The following orders issued in the course of disciplinary proceedings, must be speaking orders:

❖ Orders disposing of the allegations of bias on the part of Inquiry Authority and requesting for change

❖ Orders dealing with the request for appointment of a Legal Practioner as a Defence Assistant

❖ Orders dealing with the request for appointment of a person from outstation as a Defence Assistant

❖ Orders rejecting the request for defence documents/witnesses

❖ Orders deciding on request for adjournment

❖ Final orders imposing penalty

❖ Orders of the Appellate, Revisionary or Reviewing authority