Conduct & Disciplinary Rules - 75 & 76 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

       Conduct & Disciplinary Rules - 75 & 76 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

Conduct & Disciplinary Rules – 75 

CCS Rules & Principles of Natural justice

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.

 

Conduct & Disciplinary Rules – 76

CCS Rules & Principles of Natural justice

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.