Pandey & Ors. Vs. State of U.P.& ANR.  INSC 535 (16 March 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 471
OF 2009 (Arising out of SLP (Crl.) No.6382 of 2007) Uma Nath Pandey and Ors.
..Appellants Versus State of U.P. and Anr. ..Respondent
ARIJIT PASAYAT, J.
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 present appellants and to the other parties.
Learned Single Judge only heard the counsel for respondent No.2
and passed the impugned order.
Learned counsel for respondent No.2 submitted that the High Court
has taken note of the applicable legal position and, therefore there is no
scope for interference.
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 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.
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 2 formulated law
involving linguistic technicalities and grammatical niceties.
It is the
substance of justice which has to determine its form.
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 from unnecessary technicality,
grammatical pedantry or logical prevarication. It supplies the omissions of a
formulated law. As Lord Buckmaster said, no form or procedure should ever be
permitted to exclude the presentation of a litigants' defence.
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 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.
the first limb of this principle. It must be precise and unambiguous. It should
appraise the party determinatively the case he has to 3 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 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 significance
and shades with time. When the historic document was made 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], the
principle was thus stated:
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 whereof I commanded thee that thou shouldest not eat".
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.
Principles of natural justice are those rules which have 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 doing
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 General Council of Medical Education & Registration
of U.K. 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 interest in the controversy, and further that it
should give `a full and fair opportunity' to every party of being heard.
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:
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
administrative kind, but sometimes, it will involve matter of law as well as
matter of fact, or even depend upon matter of law alone.
cases, the Board of Education will have to ascertain the law and also to
ascertain the facts. I need not and that in doing either they must act in good
faith and fairly listen to both sides for that is a duty lying upon everyone
who decides anything. But I do not think they are bound to treat such a
question as though it were a trial....The Board is in the nature of the
arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from
the determination either upon law or upon 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".
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 6
prejudicial to 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
doubt, in the absence of special provisions as to how 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 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 the meaning of the statute if there were anything of that sort
done contrary to the essence of justice".
Lord Selbourne also added that the essence of justice consisted in
requiring that all parties should have an opportunity 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'.
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.
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 8 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 Esher, 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) B617, 530), Lord Parker, CJ, preferred to describe natural justice as
`a duty 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 Affairs Ex Parte Hosenball (1977
(1) WLR 766) preferred the homely phrase `common fairness'.
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 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 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'.
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 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 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, 10 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 Bosewell's
case (1605) 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 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.
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:
we go into the final aspect of this contention, we 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 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. Keele 11 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 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 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 certainty- of prejudice'. On the other hand, Garner
Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the
result would have been different is sufficient. On the other side of the
argument, we have apart from Ridge v. Baldwin (1964 AC 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 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 Glynn (supra) were wrongly decided. Foulkes (Administrative
Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and 12
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 though discretion
is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530)
says that while futile writs may not be issued, a distinction has to be made
according to the nature of the decision.
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 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, 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 (3) SCC 364), Rajendra Singh v. State of M.P. (1996 (5) SCC 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 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,
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."
Natural justice is the essence of fair adjudication, 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
Above being the position, we set aside the impugned order and
remit the matter to the High Court to consider the 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.
.....................................J. (Dr. ARIJIT PASAYAT)