Rule is a dynamic concept which should be employed not only to safeguard and advance the civil

and political rights of the individual in a free society but also to estahblish certain social,
economic, educational and cultural conditions, under which his legitimate aspirations and dignity
may be realised”

“However high you may be, law is above you”

Englishmen are ruled by the law, and by the law alone; a man with us may be punished for a breach
of law, but can be punished for nothing else.---------Dicey

“There would be an end of everything where the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of extracting law, that of executing
the public resolutions and of trying the causes of individuals.”

Delegated legislation is an expression which covers a multitude of confusion. It is an excuse for the
legislators, a shield for the administrators and a provocation to the constitutional jurists.

The accumulation of all powers, legislative

---- Madison

If a new and sharp axe presented by Father Washington (the legislature) to young George (the
statutory authority) to cut timber from the father’s compound is tried on father’s favourite apple
tree, an abuse of power is clearly committed.-----------------

Justice not be done but explicitly and manifestly appears to be done.---------------

“all persons possessing a portion of power ought to be strongly and wafully

Edmund Burke

“power corrupts and absolute power corrupts absolutely”.

Rule of Law-

 Supremacy of law- everything must be done according to law, no

arbitrary power
 Equality before law- “However High you may be, law is above you”.
Law should not discriminate on religion race caste, gender, social
background. Ordinary law administered by ordinary courts.
 Judge made law- courts are the guarantors of liberty and they would
be more secured if they are enforceable in the courts of law than by
 mere declaration of those rights in a document. In the latter case they
can be ignored, curtailed or trampled upon.
Criticism- ignored privileges and immunities enjoyed by the crown
Ignored administrative tribunals
Failed to distinguish b/w administrative discretion and arbitrary
discretion
Created a false opposition b/w ordinary law and special law and b/w
ordinary courts and special courts
Misunderstood and miscomprehended the real nature of French droit
administrative
Case law-
State of M P v Thakur Bharat Singh 1967
A. K kraipak v UOI 1970
B. Indria Nehru Ghandi v Raj Narian 1975
C. A. D. M. Jabalpur v Shiv Kant Shukla 1976
D. Bachan Singh v State of Punjab 1980
E. S.P. Gupta v UOI 1982
F. Sambhamurhty v State of A.P. 1987
G. D. C Wadhwa v State of Bihar 1987
H. Som Raj v State of Haryana 1990
I. In re Arundhati Roy 2002

Separation of Powers
i. The same person should not form part of more than one of the three organs of government.
ii. One organ of the Government should not interfere with any other organ of the Government.
iii. One organ of the Government should not exercise the function assigned to any other organ.

The Doctrine of separation of powers is based on four different principles:

a. Exclusivity principle which suggests structural division in all the three organs of a State
b. Functional principle which prohibits amalgamation and usurpation but not interaction of all
the three organs of State
c. Check and balance principle, meaning, thereby, that each organ of State may chack the other
to keep it within constitutional bounds.
d. Mutuality principle which means creating concord not discord, cooperation not confrontation,
engagement not estrangement amongst different organs of State to create a society of
constitutional image, which is a free, equalitarian, inclusive and rule of law society.

Functional overlapping
 Judicial review is basic feature- Minerva mills Case, L Chandra, I.R Choelo,
Kihotto Hollohon v Zachillu

Art. 53 (1), 74, 79, 123, 85, 111, art. 75(3) art. 61 art. 124, 141, 145,

The administrative law and SOP go hand in hand with each other, having
common objective i.e., to decrease concentration of power in one hand and
to ensure there is no arbitrary use of power.

JUDGMENTS OF ADMINSTRATIVE LAW

Sr. Name of the Judgment Decision/ remarks
No
1 Rai Sahib Ram Jawaya 1. SC held that the
Kupur v SOP 1955 action of the
Whether FRs of the petitioner was Govt. Did not
violated or infringed and what is the amount to
extent of executive power? violation of the
Art. 19(1)(c).
2. Executive power
connotes the
residue of Govt
functions that
remain after
legislative and
judicial functions
are taken away.
2 Asif Hameed v J&K 1. While exercising
1989 Has the HC power to issue directions to power of judicial
the State Government to constitute review of
‘statutory body’ for making admissions administrative
action the Court is
not an appellate
Court followed the State of HP v A authority.
parent of a student of Medical College , 2. The Constitution
Shimla AIR 1985 3 SCC 1669 does not permit
the Court to
direct or advise
the executive in
matter of policy
or to sermonize
qua any matter
which under the
 Constitution lies
with the sphere of
legislature or
executive,
provided these
authorities do not
transgress their
constitutional
limits or statutory
powers.

3 MP v Bharat Singh

SC upheld the order of HC and held

Section 3(1)(b) of the Act as
unconstitutional on the ground that it
invested the govt. With very wide
discretion without any procedural
safeguards as a person could have even
be interned in a place which could
render him a destitute without any
means of livelihood.

4 In re Delhi Laws Act,  Separation of

1951 power is not a
Is it permissible for the legislature to part of Indian
delegate legislative power to a Constitution
subordinate authority- limits within  Doctrine of
which this could be done delegates non
potest delgare is
not applicable.
 Parlaiment
completely
cannot abdicate
itself by creating a
parallel authority.
 Only ancillary
functions cna be
delegated
 Legislature cannot
delegate its
essential
functions.

5 Lachmi Narain v UOI

1976
The power to make notification in a legislation does not include
power to make modification in any essential feature

Where the validity of Section 2 of Union Territories (Laws) Act, 1950

and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be
 determined. The issue was that whether notification issued by Central
Government in purported exercise of its powers under Section 2 is
ultra vires. In the High Court: the validity of the withdrawal of the
exemptions was challenged on these grounds" :
(1) The power given by Section 2 of the Laws Act to the Central
Government to extend enactments in force in a State to a Union
territory, with such restrictions and modifications, as it thinks fit, could
be exercised only to make such modifications in the enactment as
were necessary in view of the peculiar local conditions. The
modification in Section 6(2) of the Bengal Act , dated October 7, 1957,
was not necessitated by this reason. It was therefore, ultra vires
Section 2 of the Laws Act.
(2) Such a modification could be made only once when the Bengal Act
was extended to Delhi in 1951. No modification could be made after
such extension.
(3) The modification could not change the policy of the legislature
reflected in the Bengal Act. The impugned modification was contrary
to it, and
(4) The modifications giving notice to withdrawn the exemptions and
the notifications issued pursuant thereto withdrawing the exemptions
from sales tax with respect to durries, ghee, (and other items relevant
to these petitions) were void as the statutory notice of not less than
three months as required by Section 6(2) prior to its modification by
the impugned notification of December 7, 1957, had not been given.
Held by the SC: The SC the set aside the judgment of the DB of the HC
and held the impugned notification, purporting to substitute the
words “such previous notice as it considers reasonable” for the words
“not less than three months notice” in section 6(2) of the Bengal Act,
beyond the powers of the Central Governement, conferred on it by
section 2 of the Laws Act. In regard to the argument that the power
conferred by Section 2 of the Laws Act is a power of conditional
legislation and not a power of 'delegated' legislation. In our opinion,
no useful purpose will be served to pursue this line or argument
because the distinction propounded between the two categories of
legislative powers makes no difference, in principle. In either case, the
person to whom the power is entrusted can do nothing beyond the
limits which circumscribe the power; he has to act - to use the words
of Lord Selbourne -"within the general scope of the affirmative words
which give the power" and without violating any "express conditions
or restrictions by which that power is limited". There is no magic in a
name. Whether you call it the power of "conditional legislation" as
Privy Council called it in Burah's case it also laid down that
modification can be done as-the power does not exhaust itself on 1st
exercise.

6 D L Mehra v UOI 1992 The proposal of the Nagar Mahapalika, Lucknow to levy theatre tax,
Delegation of taxing @ Rs. 5 per cinema show held in a building assessed on annual
powers on local bodies- rental value of Rs. 10,000 or more and @ Rs. 3 per cinema show
effacement, held in a building assessed on annual rental value of less than Rs.
discrimination. 10,000 was accepted by the State Government by following the
procedure laid-down under the U.P. Nagar Mahapalika Adhiniyam,
 1959. The Lucknow Nagar Mahapalika Theatre Tax Rules, 1965 were
framed and enforced with effect from December 15, 1965 and the
theatre tax was levied with effect from June 1,1967. The rate of tax
was increased from time to time and finally by a notification dated
October 30, 1979 the theatre tax was enhanced to Rs.25 per show
on all class-I cinemas with annual rental value more than Rs. 10,000
and Rs. 20 per show on all class II cinemas with annual rental value
of Rs. 10,000 or less.
The petitioners - the cinema owners/lessees in these Writ petitions
under Article 32 of the Constitution of India challenged the imposition
of theatre tax by the Respondent- Nagar Mahapalika, Lucknow,
contending that Section 172(2) of the Act was unconstitutional
because the legislature abdicate its function by delegating the
essential legislative powers upon the Nagar palikas to levy all or any
of the taxes enumerated in the Section; that the classification of
cinemas on the basis of annual rental value for the purpose of
fixing the rate of tax was arbitrary and as such was violative of
Article 14 of the Constitution of India; and that the classification had
no nexus with the objects sought to be achieved.
Dismissing the writ petitions of the cinema owners/lessesse, this
Court,

 Taxing power is an essential power that cannot be

delegated, however the power to levy tax can be delegated
only subject to the legislature itself exercising essential
legislative function, namely laying down the policy which
permits sufficient guidelines of tax.
 “for the purposes of Act” has been held to be sufficient
guidelines for the permission of tax, only when power is
delegated to a responsive and representative body
 SC upheld the section 172(2) and its delegation

7 Govind Chhagan Lal Issue: Whether the publication of notification u/s 6 (5) of the Gujarat
Patel v A.P.M Agricultural Produce Market Act, 1964, covering additional varieties
Committee AIR 1976 of agricultural produce ( like ginger and onion), must not only be
SC 263 published in official gazette but must be published in vernacular i.e.,
(Procedural Guajarati Newspaper?
requirements-  The question whether statute is mandatory or directory
publication) depends upon the intent of the legislature and not upon the
language in which the intent is clothed
 Khub Chand v State of Raj 1967 referred
 Held publication in the local news paper is mandatory
 The notification could affect valuable rights if the traders
 Violations could subject them to penal consequences
 Absence of prober and adequate publicity the right of the
traders and agriculturalist hampered without offerding them
an opportunity to offer objections and suggestions.
 Publication in the News paper attracts greatest attention of
the public than in OG

8 Sonik Industries Rajkot  Under section 77 of the Bombay Municipal boroughs

 v Municipal Corp. Act,1925 power is given to Municipality to levy the taxes. If
Rajkot 1986 any rule has to be made under this Act then rules have to be
published in local news papers having circulation in that
area.
 Rules were framed, however, instead of publishing the entire
rules a notice was published by municipality that all the
rules so made has been sanctioned by State Government
 The rules could be inspected in the Municipal office
 Held Notice satisfies the requirement of section 77 of
publication

9 Atlas Cycle Industries  Simple laying is merely directory, and non laying could not
Ltd. State of Haryana make the Executive order void
AIR 1979 SC 1149  Legislative Control through Laying Requirement
 SC held that the impugned provisions of law which provided
that every order by the Central Govt. Or its officer or
authority “shall be laid down before both houses as soon as
may be after it is made” as merely directory and did not
make ‘laying’ a condition precedent to the making of the
order. According to the court, the word Shall in section 3(6)
of the essential Commodity Act, 1955 is not conclusive and
decisive of the matter; and the Court is to determine the true
intention of the legislature.
10 Rajnarain Singh v  Section 3 of the Bihar and Orissa Municipal Act was in
Chairman PAC 1954 question. Power was delegated to Patna Admin. To extend
with modification and restriction any law prevailing India to
the area of Patna. Accordingly Bengal Municipality Act was
extended with modification and restriction. Sec.104 provided
levying of tax in that area with consultation with affected
people.
 Tax was levied but people were not consulted. Court held
that consultation is mandatory in nature and non compliance
is procedural ultra vires.

11 Dwarka Prasad Laxmi

Narain v State of UP
1954  Under the Essential Supplies (temporary Powers) Act, 1946,
{Arbitrariness/ the U.P.Coal Control Order , 1953 was issued, which
unreasonableness} provided that no one can carry on business in coal except
under a licence . it further laid down that the State Coal
Controller can exempt any person from the licence power.
 No guideline was allowed for regulation of this discretionary
power.
 The said order held unconstitutional
12 A N Parasuraman v
State of TN 1990
{Conferment of The appellants challenged the Section 6,7 and 15 of the Tamil Nadu
unguided power not Pvt. Educational Institutions (Regulation )Act, 1966
 permissible}  The Court held that Act conferred unguided power on the
authority and, therefore was ultra vires and illegal.
 The purpose of the Act to regulate Private educational
institutions but does not give any idea as to the manner in
which the control over the institution could be exercised.

13 J R Ragupathy State of
A P 1988 No power to the judiciary to issue writs when there is nothing on
record to show that the decision of the government was arbitrary or
capricious or was one not reached in good faith or actuated with
improper considerations or influenced by extraneous considerations.

14 Coimbatore Distt.
Central Co. Bank v The Wedsnesbury principle has given way to the doctrine of
Employee. Asson. 2007 proportionality
Discipilanry action taken against 53 workmen on accounts of acts of
misconduct and contiuinty of their illegal strike.
 DOCTRINE OF PROPORTIONALITY So far as the doctrine of
proportionality is concerned, there is no gainsaying that the
said doctrine has not only arrived at in our legal system but
has come to stay. With the rapid growth of Administrative Law
and the need and necessity to control possible abuse of
discretionary powers by various administrative authorities,
certain principles have been evolved by Courts. If an action
taken by any authority is contrary to law, improper,
unreasonable, irrational or otherwise unreasonable, a Court of
Law can interfere with such action by exercising power of
judicial review. One of such modes of exercising power,
known to law is the 'doctrine of proportionality'.
 'Proportionality' is a principle where the Court is concerned
with the process, method or manner in which the decision-
maker has ordered his priorities, reached a conclusion or
arrived at a decision. The very essence of decision-making
consists in the attribution of relative importance to the factors
and considerations in the case. The doctrine of proportionality
thus steps in focus true nature of exercise the elaboration of
a rule of permissible priorities.
 de Smith states that 'proportionality' involves 'balancing test'
and 'necessity test'. Whereas the former ('balancing test')
permits scrutiny of excessive onerous penalties or
infringement of rights or interests and a manifest imbalance
of relevant considerations, the latter ('necessity test') requires
infringement of human rights to the least restrictive
alternative. ['Judicial Review of Administrative Action'; (1995);
pp. 601-605; para 13.085; see also Wade & Forsyth;
'Administrative Law'; (2005); p.366].
 "The court will quash exercise of discretionary powers in
which there is no reasonable relationship between the
objective which is sought to be achieved and the means used
to that end, or where punishments imposed by administrative
bodies or inferior courts are wholly out of proportion to the
 relevant misconduct. The principle of proportionality is well
established in European law, and will be applied by English
courts where European law is enforceable in the domestic
courts. The principle of proportionality is still at a stage of
development in English law; lack of proportionality is not
usually treated as a separate ground for review in English law,
but is regarded as one indication of manifest
unreasonableness."
 The doctrine has its genesis in the field of Administrative Law.
The Government and its departments, in administering the
affairs of the country, are expected to honour their
statements of policy or intention and treat the citizens with
full personal consideration without abuse of discretion. There
can be no 'pick and choose', selective applicability of
Government norms or unfairness, arbitrariness or
unreasonableness. It is not permissible to use a 'sledge-
hammer to crack a nut'. As has been said many a time;
"Where paring knife suffices, battle axe is precluded". In the
celebrated decision of Council of Civil Service Union (CCSU) v.
Minister for Civil Service, (1984) 3 All ER 935 : (1984) 3 WLR
1174 : (1985) AC 374 (HL), Lord Diplock proclaimed;
 So far as our legal system is concerned, the doctrine is well-
settled. Even prior to CCSU, this Court has held that if
punishment imposed on an employee by an employer is
grossly excessive, disproportionately high or unduly harsh, it
cannot claim immunity from judicial scrutiny, and it is always
open to a Court to interfere with such penalty in appropriate
cases. In Hind Construction Co. v. Workmen, (1965) 2 SCR 85 :
AIR 1965 SC 917, some workers remained absent from duty
treating a particular day as holiday. They were dismissed from
service. The Industrial Tribunal set aside the action. This Court
held that the absence could have been treated as leave
without pay. The workmen might have been warned and
fined. (But) "It is impossible to think that any reasonable
employer would have imposed the extreme punishment of
dismissal on its entire permanent staff in this manner." The
Court concluded that the punishment imposed on the
workmen was not only severe and out of proportion to the
fault, but one which, in our judgment, no reasonable
employer would have imposed.
 "Judicial review developed to a stage today when, without
reiterating any analysis of the steps by which the development
has come about, one can conveniently classify under three
heads the grounds on which administrative action is subject to
control by judicial review. The first ground I would call
'illegality', the second 'irrationality' and the third 'procedural
impropriety'.

15 Om Kumar & Others v

UOI 2000  Rule of proportionality originated in Prussia in the 19 th
 Quantum of century and has since been adopted in other European
punishment and the Countries.
doctrine of  Doctrine of proportionality is closely related to
proportionality reasonableness and it is considered anew new development
in the area of judicial review
 Courts can interfere with decisions where punishment is
disproportionate or excessive or totally irrational
 Legislature or Administrative should adopt appropriate or
least restrictive choice of measures to achieve the object of
legislation or the purpose of administrative order as the case
may be
 The Legislature and the administrative authority given an
area of discretion or a range of choice but as to whether the
choice made, infringes the rights excessively or not is for the
Court to see, that is what is meant by proportionality
 Since the adoption of Constitution the rule of
proportionality has been applied.
 Art 14, 19, 21 are subject to the principle of proportionality

 There should be proper balance b/w the adverse effects

16 R. v Secretary of State
for Home Deptt. 2001
 Whether the policy infringes Mr. Daly’s common law right to
maintain the confidentiality of his privileged legal
correspondence
 Court held that the policy infringes Mr. Daly’s common law
right to legal professional privilege
 De Freitas v Secretary 1999 referred
 In determining whether a limitation (byan act, rule or
decision) is arbitrary or excessive the Court should ask itself
whether
a) The legislative objective is sufficiently important to
justify limiting a Fundamental Right;
b) The measure designed to meet the legislative obkectives
are more than is necessary to accomplish the objective
c) The measure used to impair the right or freedom are no
more than is necessary to accomplish the objective.

Ranjit Thakur v UOI The appellant, a Signal Man in a Signal Regiment of

1987 the Armed Services, while serving out a
sentence of 28 days' rigorous imprisonment imposed
on him by the Commanding officer of the Regiment
respondent No. 4, for violating norms for
presenting representations to higher officers, was
alleged to have committed another offence by
refusing to eat his food on March 29, 1985 when
ordered to do so. He was charged under section
41(2) of the Army Act, 1950 for disobeying a
 lawful command given by his superior officer. A
sentence of rigorous imprisonment for one year was
imposed by a Summary Court Martial consisting of
respondent No. 4 and others. He was removed to the
civil prison and he served out the sentence.
The appeal is allowed, the order of the High Court
set aside, the writ petition preferred in the High
Court allowed and the impugned proceedings of the
Summary Court-Martial dated March 30, 1985, and the
consequent order and sentence are quashed. The
appellant is entitled to and shall be reinstated
with all monetary and service benefits. There will,
however, be no order as to costs.

17 G. Sadananadan v State
of Kerala 1966  The petitioner G. Sadananadan a businessman carries on
wholesale business in Kerosene Oil, was aresetd under
defence rules,1962
 The object of the DSP to eliminate the petitioner from the
field of wholesale business in Kerosene Oil so that his
relatives may benefit and obtain the dealership
 Held malfide exercise of power

18 Express Newspapers
Pvt. Ltd v UOI 1986 In this case the Express Newspaper were served with notices of re-
Malafide and doctrine entry upon forfeiture of lease of land granted to them on which the
of promissory estoppel lessee had raised the buildings for printing and publishing the
newspapers.
 The SC held that the action had been politically motivated
and, therefore, vitiated by malfide intention
 The doctrine of promissory estoppels was used to prevent
the government form quashing the action of the Minister for
approval of a lease as it was within the scope of his authority
to grant such permission.
19 State of Bombay v K P Relevant and irrelevant considerations
Krishnan 1961
20 Ranjit Singh v UOI 1981
irrelevant considerations
In 1950, the State Government issued a manufacturing licence
renewable every year to the petitioners for the manufacture by
hand of a specified number of guns per month. The guns were
however not proof-tested. After the Arms Act 1959, came into
force, the government insisted that the guns
manufactured should undergo proof-testing. Pursuant to
that condition in 1960, the petitioners installed machinery and
plant, by making substantial investment of funds. From 1964,
the Government of India, reduced the monthly quota of guns. The
petitioners in their writ petitions under Article 32 alleged that
this reduction had resulted in considerable
hardship to them because of the fixed overhead costs which could
not be avoided. They also alleged that though in the case of a
number of other such manufacturers quotas were restored, in their
 cases, the Government refused to restore the quotas. The Union of
India, however, denied the allegation of arbitrariness, and stated
that: (a) what was done was pursuant to the Industrial Policy
Resolution of 1956 which envisioned an exclusive monopoly in the
Central Government in the matter of manufacturing arms and
ammunition and that in fixing the quota the manufacturing capacity
of a concern was not a determining factor; (b) there is no
fundamental right under Article 19(1)(g) of the Constitution to carry
on the manufacture of arms; and (c) there was laches on the
part of the petitioners.
Allowing the writ petitions,
HELD: (a)(i) Any curtailment of the quota must proceed on the
basis of reason and relevance. The Government is entitled to take
into consideration the requirements of current administrative policy
pertinent to the maintenance of law and order and internal
security. If all relevant factors are not considered, or irrelevant
considerations allowed to find place, the decision is vitiated by
arbitrary judgment. In the instant case the Government of India
had not taken into careful consideration the several elements
necessary for forming a decision on the quota permissible to each of
the petitioners. That should be done and for that purpose the
petitioners would be entitled to place before the Government
a fresh and complete statement of their case, with supporting
material, to enable the Government to reach a just decision.
(b) The Arms Act 1959, expressly contemplates the grant of licences
for manufacturing arms and an applicant for a licence is entitled to
have it considered in accordance with the terms of the statute and to
press for its grant on the basis of the criteria set forth in it.

21 Nandlal Khodidas Barot

v BC of Gujarat 1981 Application of mind
Advocate suspended from service

22 Shree Ram Sugar

Industries v State of AP Fetters on discretionary powers
1974

23 A K Kraipak v UOI 1970 In this case, Naquishband, who was the acting Chief Conservator of
Application of the PNJ Forests, was a member of the Selection Board and was also a
in administrative candidate for selection to All India cadre of the Forest Service. Though
Actions. {The dividing he did not take part in the deliberations of the Board when his name
line b/w an was considered and approved, the SC held that `there was a real
administrative power likelihood of a bias for the mere presence of the candidate on the
and a quasi-judicial Selection Board may adversely influence the judgement of the other
power is quite thin and members'
is being gradually SC also made the following observations: -
obliterated.} 1. The dividing line between an administrative power and quasi-
 judicial power is quite thin and is being gradually obliterated. Whether
a power is Administrative or quasi-judicial, one has to look into-
a) the nature of power conferred
b) the person on whom it is conferred
c) the framework of the law conferring that power
d) the manner in which that power is expected to be exercised.
2. The principles of natural justice also apply to administrative
proceedings,
3. The concept of natural justice is to prevent miscarriage of justice
and it entails -
(i) No one shall be a judge of his own cause.
(ii) No decision shall be given against a party without affording him a
reasonable hearing.
(iii) The quasi-judicial enquiries should be held in good faith and not
arbitrarily or unreasonably.

24 Ashok Kumar Yadav v

State of Haryana 1987 Rule against bias- doctrine of necessity
Ashok Kumar Yadav Vs. State of Haryana
Issue
Whether the selection of candidate would vitiate for bias if close
relative of a members of the Public Service Commission is appearing
for selection?
Held
The SC laid down the following propositions: -
1. Such member must withdraw altogether from the entire selection
process otherwise all selection would be vitiated on account of
reasonable likelihood of bias affecting the process of selection
2. This is not applicable in case of Constitutional Authority like PSC
whether Central or State. This is so because if a member was to
withdraw altogether from the selection process, no other person
save a member can be substituted in his place and it may sometimes
happen that no other member is available to take the place of such a
member and the functioning of PSC may be affected.
3. In such a case, it is desirable that the member must withdraw
from participation in interview of such a candidate and he should
also not take part in the discussions.
The SC conceptualised the doctrine of necessity in this case.

25 G. N. Nayak v Goa
University 2002 The case is a leading case on Rule against Bias. In this case, a senior
officer expressed appreciation of the work of a junior officer in his
confidential report. He was also a member of the Departmental
Promotion Committee to consider such junior officer along with
others for promotion. The committee recommended this junior
officer for promotion which was challenged on the ground of
personal bias actuated by an element of personal interest. The Apex
Court held that unless preference is unreasonable and is based on
self-interest, it will not vitiate an administrative decision. Taking the
opportunity, the apex court also held that preparing an exhaustive
 list about relations that could possibly lead to personal bias cannot
be made.

26 Amar Nath Chowdhary  Rule against bias- doctrine of necessity

v Braithwaite & Co. Ltd  The applicability of necessity was rejected. The appellant, an
2002 employee of government undertaken company was
dismissed from service. The order of dismissal was passed by
the Chairman-cum-MD of the company who was Disciplinary
authority.
 The appellant preferred an appeal against the order of his
removal from service before the Board of Directors of the
Company.
 The MD participated in the decision of the Board and the
appeal was dismissed.
 The decision set aside on the ground of bias.
 Court rejected the defence of ‘doctrine of necessity’.

27 Hira Nath Mashra v  Right of cross examination

Prinicpal Rjendra
Medical College 1973  Male students, entered naked into the compound of the
Girls hostel late at night.-- enquiry committee found the
students guilty and were expelled

 Challenged the order as vilative of PNJ in as much as the

statements of the girl students were recorded behind their
back and no opportunity was given to them to cross-examine
those girls students.

 The SC rejected the contention and held “---

The circumstances of the case shows that PNJ ARE NOT VIOLTED.
 DNJ can’t be imprisoned within the strait-jacket of a rigid
formula and its application depends on several factors.
 PNJ are flexible.
28 J K Aggarwal v Haryana  The right of representation by a lawyer may not in all cases
seeds dev Corp. 1991 be held to be a part of natural justice. No general principle
Right of legal valid in all cases can be enunciated.
Representation / right
to counsel  The Rule itself recognises that where the charges are so
serious as to entail a dismissal from service, the inquiry-
authority may permit the services of a lawyer.

 When the rule is silent then the party has no absolute right
to be legally represented. It is the matter for the discretion
of the authorities or Tribunal. If they in the proper exercise
of their discretion, decline to allow legal representation, the
courts will not interfere but the Tribunals must not fetter its
discretion by rigid rules. A Tribunal is not at liberty to lay
down an absolute rule: “we will never allow anyone to have
a lawyer to appear for him”. The Tribunal must be ready, in a
prper case, to allow it.
  Pett v. Grehound Raling Association Ltd., [1969] Pett's case
No. 2, 1970(1) QB 46: Enderby Town Football Club Ltd. v.
Football Association Ltd., [1971] Chancery Div. C.L.
Subrahmaniam v. Collector of Customs, Cochin, [1972] 3
SCR 485, referred. Board of Trustees of the Port of Bombay v.
Dilip Kumar, [1983] 1 SCR 828, followed.

29 BPCL v Maharastra Representation of an employee in the The basic principle is that

General Kamgar Union disciplinary proceedings through
1999 another employee who, though not an
employee of the appellant- Corporation
was, nevertheless, a member of the
Trade Union- is it valid.
an employee has no right
to representation in the
departmental
proceedings by another
person or lawyer unless
the service rules
specifically provides for
the same. The right to
representation available
only to the extent
specifically provided for
in the rules.

30 Maneka Gandhi v UOI Post decisional hearing

In this case the passport of the Petitioner was seized on ground of

interest of public by the central government under section 10(3)
(c) of the Passport Act 1967 without giving her opportunity of
any hearing . Hence she filed a writ petition under art 32 on
following grounds –

  Section 10(3)(c ) is violative of Article 21 as it does not

prescribed any procedure  for the seizure of the passport.
  Section 10(3)(c) is violative of Article 14 as power conferred
to the delegate is excessive .
  Section 10(3)(c) is violative of Article 19 (1)(a) and Article
19(1)(g) .
  She was denied from the opportunity of hearing which
amount to the arbitrary exercise of the power violating of
Article 14.
 Held: The seizure of the passport was mala fide in violation
of Article 14, 19, 21. Procedure established by the law means
 a procedure which is just, fair and reasonable. Rule of Audi
Alteram Partem is a part of natural law protected under
Article 21. Illegal seizure of passport violates Article 19 (1)
(a) ,19(1)(g) having a direct bearing on right to food
protected under art 21. Realising that there was fatal defect
and decision of the court would render the central
government’s order, as void, the attorney general gave the
assurance that - “The opportunity of hearing and
representation shall be given to the petitioner within two
weeks  and representation will be dealt with expeditiously in
accordance with the law “. On getting this assurance the
Supreme Court disposed the case.
 The post decisional hearing will give satisfaction to the
affected individual that he was at least given some
opportunity of hearing even at a belated stage.

Article 14, 19 and 21 strength each other are not mutually exclusive
but mutually inclusive.

31 H L Tehran v UOI Post decisional hearing

In K.I.Shephard Vs. UOI certain employees of the amalgamated
banks were excluded from employment. The Court allowing the
writs held that post-decisional hearing in this case would not do
justice. The court pointed out that there is no justification to
throw a person out of employment and then give him an
opportunity of representation when the requirement is that he
should be given an opportunity as a condition precedent to
action.
In H.L.Trehan Vs. UOI, a circular was issued by the Govt. on
taking over the company prejudicially altering the terms and
conditions of its employees w/o affording an opportunity of
hearing to them. The SC observed that "In our opinion, the post
decisional opportunity of hearing does not subserve the rules
of natural justice. The authority who embarks upon a post-
decisional hearing will normally proceed with a closed mind and
there is hardly any chance of getting proper consideration of
the representation at such a post decisional hearing."

32 K I Shepherd v UOI  Post decisional hearing

1988  Due the nationalization of three banks, some employees
 were excluded and there services were not taken over by the
transferee banks. These employees filed writ petitions
before the HC, which granted partial relief by proposing post
decisional hearing. Some of them even filed writ petition
before the SC, where Court did not allow post-hearing and
observed that, in this case, it would not serve any purpose
and it is a mere formality.

33 S N Mukhrejee v UOI Issue

1990 Whether it was incumbent upon the Chief of Army Staff to record
Requirement of passing the reasons of the orders passed by him while confirming the
reasoned Order findings and the sentence of the CG
Observed
SC observed that
 The requirement to record reasons could be regarded as one
of the principles of natural justice.
 An administrative authority must record the reasons in
support of their decisions, unless the requirement is
expressly or by necessary implication excluded.
 The reasons cited would enable the court to effectively
exercise the appellate or supervisory powers.
 The giving of reasons would guarantee consideration of the
matter by the authority.
The reasons would produce clarity in the decisions and reduce
arbitrariness.
Held: U/s 162 of the Army Act, the reasons have to be reached only
in cases where the proceedings of a summary court martial are set
aside or the sentence is reduced and not when the findings and
sentence are confirmed. Thus requirement of recording reasons
cannot be insisted upon at the stage of consideration of post-
confirmation petition by the CG.

34 MD, ECIL, Hyderabad v  In K Keasv Mills Co.Ltd. v UOI 173 (SC) – Held if due to non suplly
B. Karunakar 1993 of report rights of the partiers are not affected then there would
ECIL Case be no violation of PNJ
 UOI v E. Bashyan 1988- a two judge Bench held that failure supply
the inquiry report to the delinquent before the disciplinary
authority took the a final decision would constitute a violation of
the PNJ.
 In Kailash Chander Asthaana v State of U.P 1988- Three Judge
Bench held the copy of the enquiry report need not to be shown
to the delinquent employee.
 In UOI v Mohd. Ramjan Khan 1991 SC hled held that non
furnishing of enquiry would amount to the denial of PNJ.
 Following rules are laid down:
a) The delinquent employee has a right to receive a copy of the
 Inquiry Officer’s report before the decision.
b) Denial of the copy is a denial of reasonable opportunity to
prove his innocence and breach of the PNJ
c) In case on minor punishments procedure given in the relevant
service rules will applicable
d) When copy of the report not provided, the employees not
reinstated with back wages. The Court and Tribunal should
cause the copy of the report to be furnished to him and give
the employee an opportunity to show that his case was
prejudiced because of the non-supply of the report.
e) The Court or Tribunals don act mechanically
f) It is only if the Court or Tribunals finds that the furnishing of
the report would made a difference to the result in the case
that it should set aside the order of punishment.

36 Surya Dev Rai v Ram

Chandra Rai 2003 Article 226 Art.227
Difference b/w Art.226 Original jurisdiction Supervisory Jurisdiction
and 227 The record of proceedings Not only quash or annul or set
having been certified and sent aside the impugned
up by the inferior Court or proceedings, may give
tribunal to the HC- the HC may directions as the facts &
simply quash or annul the circumstances of the Case.
proceedings and then do no
more.
Jurisdiction u/226 is capable of Jurisdiction u/227 can be
being exercised on a prayer exercised suo moto as well
made by or on behalf of the
party aggrieved.
37 Anadi Mukta Sadguru
Case Can the writ of mandamus be issued against any individual or private
body?
1. If the rights are purely of private character, no mandamus
can be issued
2. If the Mgt of the college is a private body with no public
duty, Mandamus will not lie.
3. The appellant trust was managing the affiliated college to
which public money was paid as government aid.
4. The adied institutions discharge the public functions
5. Therefore legal right-duty relationship b/w staff and the
Mgt. And mandamus can’t be refused.
38 Common Cause v UOI
No mandamus for exercise of discretionary power

39 Rupa Ashok Hurra v Even after a review petition filed u/art.137 is rejected by the SC,
Ashok Hurra 2002 that may not be the end of the road. The Court may still review the
case under its inherent power but on very restricted ground.
 Curative petition
The question before a Constitution Bench in this case was whether an
aggrieved person is entitled to any relief against a final
judgment/order of the Supreme Court, after dismissal of review
petition (under Article 137 of the Constitution), either under Article 32
of the Constitution or otherwise.
Held that the Supreme Court, to prevent abuse of its process and to
cure a gross miscarriage of justice, may reconsider its judgments in
exercise of its inherent power. This was allowed by way of a curative
petition.
Grounds/ requirements
 Violation of PNJ
 Judge failed to disclose his connection with the subject matter
 The grounds mentioned had been taken in the review petition
and that it was dismissed by circulation
 Certification by a senior advocate with regard to the fulfilment
of the above requirements
 The curative petition has to be circulated to the Bench of 3
senior most judges and the judges who passed the judgment
complained of, if available.

40 Secretary Gen. SC v Facts: In 1997 at the Conference of Chief Justices, all the judges
Subhash Chandra adopted a “Code of Conduct” which required them to disclose their
Agarwal 2010 assets in confidence to their Chief Justices. To see whether the judges
are complying with the Code of Conduct or not, an RTI activist Subash
Agarwal filed an RTI application seeking information from the Public
Information Officer (PIO) of the Supreme Court in this regard and also
for a copy of the adopted “Code of Conducts”. The PIO responded by
saying that the information does not exist in the court registry. On
appeal, the appellate authority directed the PIO to give name of the
officer having the relevant information and to refer the application to
the authority having the information by way of Section 6(3) of the Act.
On remission the PIO rejected the application asking to file the
application to respective High Courts.
The applicant then approached the CIC. The CIC rejected the
contentions of the Information Officer and directed him to provide the
information. This led to a writ petition in the Delhi High Court
challenging the order of the CIC. A single bench judge decided that the
order given by the CIC was correct.
An appeal was filed against the decision given by the single judge
bench.
Issues
· Whether the respondent had any "right to information" under Section
2(j) of the Act in respect of the information regarding making of
declarations by the Judges of the Supreme Court pursuant to 1997
Resolution?
· If the answer to question (1) above is in affirmative, whether CJI held
the "information" in his "fiduciary" capacity, within the meaning of the
expression used in Section 8(1)(e) of the Act?
· Whether the information about the declaration of assets by the Judges
of the Supreme Court is exempt from disclosure under the provisions
of Section 8(1)(j) of the Act?
 Contention of the Appellant Side
The appellant in the plaint raised following points:
· That the appellant has no right to information under Section 2(j) of
the Act, as of the two essential ingredients second one is not being
fulfilled.
· He stated that the resolution of 1997 has no force of law, as there is
no legal or constitutional requirement as such in this regard.
· The resolution of 1997 had two parts, first one talked about punishing
a judge if he failed to fulfill values of judicial life while second part
was about the declaration of assets. However, no in-house procedure
has been established in this regard.
· The learned Attorney General relied heavily on Indira Jaising v.
Registrar General, Kailash Rai v. Jai Jai Ram, Bhudan Singh v. Nabi
Bux.
Contentions of the Respondent Side: In reply the learned council stated
that:
· The respondent is not seeking for enforcement of the resolution.

· When the information is provided to the CJI, it comes under the

control of CJI as a public authority as hence comes under the ambit of
the Act.
· The code of conduct creates an in house mechanism for the
punishment of judges. The CJI has previously implemented this
mechanism, which shows the binding character of the Code of
Conduct.
· The information is being held by the CJI in full conscience and is
being maintained in the office as a record.
· The learned council rebutted all the cases cited by the Attorney
General by stating that the authorities used were of the matter of
property and hence are of a different nature.
Judgment: The appeal was dismissed and the impugned order of the
single judge was upheld. The judgment passed by the court was:
· Judges have to declare there assets are not being introduced for the
first time. Subordinate judges are required to do so. Since, it is essential
for the subordinate judge to declare his assets the requirement of the
higher court judge is even more. For a higher hierarchy judge the
degree of accountability and scrutiny should be stricter.
· Office of Chief Justice of India comes under the concept of “Public
Authority” with respect to Section 2(e) of the Right to Information Act,
2005.
· Assets declaration held by CJI or CJ’s of the respective High Courts
comes under the ambit of information of the Section 2(f) of the Right
to Information Act, 2005.
Asset information held by the CJI is not a fiduciary and if such
information is revealed it will not result in breach of such duty.

41 L Chandra Kumar v. UOI  S. P. Sampat Kumar v. Union of India (1987) overruled.

1997  Power of judicial review over legislative action vested in
the High Courts and the Supreme Court under Articles
226 & 227 and 32 respectively is the basic structure of the
Constitution.
 Power of judicial superintendence over decisions of all
courts and Tribunals within their jurisdiction is the basic
 structure of the Constitution.
 Article 323-A (2) (d) and Article 323-B (3) (d) of the
Constitution of India, Section 28 of the Administrative
Tribunal Act, 1985 decaled unconstitutional as they
damage the power of judicial review which is a basic
feature of the Constitution.
 Doctrine of prospective overruling applied
 The tribunals may perform the supplemental function
 All the decisions of the tribunals will be subject to the
scrutiny before DB of the HC which has the jurisdiction
over the tribunals concerned

Xxxxxxxxxxxxxxx

REPORT OF ENQUIRY REPORT TO BE SHOWN TO THE OTHER PARTY

Whether a copy of enquiry report must be submitted to the delinquent employee before
passing the order?
Until 1987, there was no precedent or law which made it obligatory, in all cases, for the
disciplinary authority to serve a copy of the enquiry report on the delinquent before reaching
a final decision. For the first time in 1987, full bench of CAT held that failure to supply a
copy of the enquiry report to the delinquent before recording a finding against him is
obligatory and failure to do so would vitiate the enquiry. (P.K. Sharma Vs, UOI)
The SC in 1973 considered this question in Keshav Mills Co. Ltd. vs. UOI.
Facts
Appellant Co. after doing business for 30 years closed down. 1200 persons unemployed -
On the basis of commission to enquire into the affairs of the co. u/s 15 of IDRA, GOI passed
an order u/s 18-A to take over the mill. Challenged before SC on the ground that enquiry
report not submitted
Held
 Not possible to lay down general principle on this Q.
 Answer depends on facts and circumstances of each case
 If the non-disclosure of the report causes any prejudice in any manner to the party, it
must be disclosed, otherwise non-disclosure would not amount to violation of
principles of natural justice.
In UOI Vs. Mohd. Ramzan Khan (1991) a bench of 3 judges held that non-furnishing of the
enquiry report would amount to denial of the principles of natural justice.
In Managing Director, Electronic Corporation of India Limited Vs. B.Karunakar SC laid
down the all-important guidelines on this issue: -

Sr. No Question Answer

1. Whether Mohd. Ramzan case Yes this rule extends to all

applies to all establishments? establishments - whether
Govt., non-Govt., public or
private

2 Whether the obligation to It is the right of the employee

 furnish the report is only
when the employee asks for
the same or whether it exists
otherwise?
to have the copy of the report
to defend himself.
Failure to ask for report does
not amount to waiver of his
right. The report must be
given.

3 Whether the report should be The delinquent employee is

Furnished even when the
rules are either silent or
against it?
entitled to the report, as
denial of the report is a denial
of reasonable opportunity
and breach of
principles of natural justice.
Such rules denying such right
shall be invalid.

4 The courts will decide

What id the effect of non whether the employee has
furnishing of the report on been prejudiced because of
the order of punishment and non-supply of report. If the
what relief should be grantedcourt comes to the conclusion
to the employee in such that the non-supply of report
cases? would have made no
difference to the
ultimate findings and the
punishment given the courts
would not interfere with the
order of punishment.
Otherwise the order of
punishment can be set aside.
However, the rule laid down in Mohd. Ramzan Khan case will not apply if the disciplinary
authority itself is the hearing/enquiry officer.