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TMI Blog2005 (3) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... atural justice. Therefore, it was held that the order was passed without proper application of mind regarding the findings recorded by the Disciplinary Authority on the basis of report of the Enquiry Officer, and relating to imposition of punishment. However, High Court permitted the respondent (writ petitioner) to make a detailed representation to the Disciplinary Authority in respect of the enquiry proceedings and findings, within a stipulated time and direction was given to the Disciplinary Authority to consider the submission and pass a fresh order. High Court further directed that the period during which respondent was out of service was to be treated as period under suspension, and the employee was to be paid subsistence allowance. It would be relevant to note that the respondent filed a writ petition questioning the order directing his dismissal from service. Learned Single Judge came to hold that the quantum of punishment, i.e., dismissal from service was disproportionate to the misconduct proved. It was, however, held that no prejudice was caused to the writ petitioner and there was no violation of principles of natural justice. Both the writ petitioner and the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing, in the case at hand the position is different. The position was illuminatingly stated by this Court in Managing Director, ECIL v. B. Karunakar AIR 1994 SC 1074 : which reads as follows : "Hence, in all cases where the Enquiry Officer s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, to what extent, any prejudice has been caused. It may be 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. 8. 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 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. 9. 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. Natural justice relieves legal justice fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er affecting those rights. These rules are intended to prevent such authority from doing injustice. 12. What is meant by the term principles of natural justice is not easy to determine. Lord Summer (then Hamilton, LJ) in Ray v. Local Government Board [1914] 1 KB 160 at p. 199: described the phrase as sadly lacking in precision. In General Council of Medical Education Registration of U.K. v. Sanckman [1948] 2 All ER 337, Lord Wright observed that it was not desirable to attempt to force it into any procustean bed and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give a full and fair opportunity to every party of being heard. 13. 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, 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 questions of various kinds. It will, I suppose usually be of an adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 . 14. 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. 15. Natural justice has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a Judge in his own cause . Coke used the form aliquis non debet esse judex in propria causa quia non protest esse judex at pars (Co. Litt. 1418), 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 . The form nemo protest essee 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 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 stattuerit parte inaudita alteram actquam licet dixerit, haud 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 [ See Boswell s case (1606) 6 Co. Rep. 48-b, 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 . Whenever an order is struck down as invalid being in violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackneer, J. has said that the useless 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 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 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 Glymn, supra , were wrongly decided. Foulkes ( Administrative Law, 8th Edn. 1996, p. 323), Craig ( Administrative Law, 3rd Edn. p. 596), and others say that the court cannot prejudge what is to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing. ( See Charanlal Sahu v. Union of India AIR 1990 SC 1480). 19. The aforesaid position in law was again reiterated in Canara Bank v. Debasis Das [2003] 4 SCC 557. 20. Inevitably, the conclusion arrived at by the Division Bench that there was violation of principles of natural justice cannot be maintained. 21. Coming to the question whether the punishment awarded was disproportionate, it is to be noted that the various allegations as laid in the departmental proceedings reveal that several acts of misconduct unbecoming a bank official were committed by the respondent. 22. It is to be noted that the detailed charge sheets were served on the respondent-employee who not only submitted written reply, but also participated in the proceedings. His explanations were considered and the Inquiry Officer held the charges to have been amply proved. He recommended dismissal from services. The same was accepted by the Disciplinary Authority. The proved charges clearly established that the respondent-employee failed to discharge his duties with utmost integrity, hone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case may be. Under the principle, the court will see that the Legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve . The Legislature and the administrative authority are, however, given an area of discretion or a range of choices; but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality. ** ** ** 37. The development of the principle of strict scrutiny or proportionality in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of strict scrutiny . In the case of these freedoms, Wednesbury principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of the convention, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecretary of State in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations and that the courts were not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it. Lord Templeman also said in the above case that the courts could go into the question whether a reasonable Minister could reasonably have concluded that the interference with this freedom was justifiable. He said that in terms of the convention any such interference must be both necessary and proportionate ( ibid pp. 750-51). In a famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case [1991] 1 AC 696. Where Convention rights were in question, the courts could exercise a right of primary review. However, the courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of arbitrariness of the order of punishment is questioned under article 14. ** ** ** 71. Thus, from the above principles and decided cases it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as arbitrary under article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment." (p. 399) 26. In B.C. Chaturvedi v. Union of India [1995] 6 SCC 749, it was observed: "18. A review of the above legal position would establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruled out. These are the Ccsu [1985] AC 374 principles. (3)( a ) As per Bugdaycay [1987] AC 514, Brind [1991] 1 AC 696 and Smith [1996] 1 All ER 257 as long as the convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)( b ) If the convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)( a ) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and Ccsu principles as stated by Lord Greene and Lord D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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