(2) Audi alteram partem : Rule of Hearing.

The audi alteram partem rule means that no one should be condemned
civilised society it is assumed that a person against whom any action is soughtunheard. in
to be
taken, or whose right or interest is being affected, shallbe given a reasonable opportunity
to defend himself. This jural postulate is the kernel of natural justice. Professor. H.W.R.
Wade rightly says that audi alteram partem embiaces the whole nation of fair procedure
or due process. i25
12 According to de Smith,"no proposition can be more clearly establ1shed
than that a man cannot incur the loss of liberty or property for an offence by a judicial
proceeding until he has had a fair opportunity of answoring the case against him." "A party
is not to suffer in person or in purse without an opportunity of being heard." 126 It is the first
principle of civilised jurisprudence and is accepted by the laws of Men and God. In short,
the principle is that before an order is passed against any person reasonable opportunity
of being heard must be afforded to him. Generally, the maxim includes two ingredients :
() notice; and (ii) hearing.
(i) Notice
A basic principle of natural justice is that before any action is taken, the affected his
person must be given notice to show cause against the proposed action and seek
explanation. It is asine qua non of fair hearing. Any order passed without giving notice is
initio. 127
against the principles of natural justice and is void ab
Even if there is no proision in the statute about giving of notice, if the order
to be given. 128 Further it
adversely affects the rights of an individual, the notice is required
necessary that the notice must be clear, specific and un-ambiguous and the charges
IS 129
should not be vague and uncertain.
Adequacy of Notice.-It is not enough that notice in a given case be given, it
(a) adequacy of notice depends upon the facts and
must be adequate also. The question of
each case. However, a notice in order to be adequate must contain the
Ircumstances of
following :
(1)Time, place and nature of hearing.

124. (1992) 3 SCC690.

124a. (2000) 7 SCC 129.
125 Wade, Administrative Law. 2nd Edn. 168.
Painter v. LivorooolOI Light Co., (1836) A&E. 433 (448-49). SC 458.
lc6. State Transpont Authority, AIR 1965
E. Municipal Board Pushkar v.
180;East India Commercial Co. v. Collector of Customs, AIR
le8. Cooper v. Wandsworth
(1863) 45 B (NS)
1962 SC 1893.
N.R. Co-op. Society v. Industrial Tribunal, AIR 1967 SC 1182.
te.
 Boardpower without
was power Concerned
against
him. Hearing(i) CourtState the to
dismantle
opportunity
for not requirement prejudice that
conversant
opportunityof charges.contractor underthe Court notice.charges but 190
143. 142. 141 140. 139. 138. 137. 136. 135 134. 133. 132. 131. 130. defend a fact Engineer
demolished. High separatevalid. the it
AIR
(1863)(618-19). StateBhagwan Keshava was In The
Government was In (b) The found In isThe (3) (2)
AnnamuthadoC.A.T.A. Russel AIR N.S. N.R.StateRussel See without prior to and
1994 demolish the State 140 is Department. 136 aare Matters a Legal
1978 Co-op. section
Transport not second
must liable Court himself Reasonable a question standard that
proposed number
For adequacy
14 of v. of structure
Where to of caused it with toand that question
vague
CBSC Society J. Bómbayv. V. permission. leading of
&Datta MillsDuke SC giving
in charge comply naturaldepends the it
example, authority
K. 5(a).American UKe be declared
to the wasnotice
(NS) 125. v. 930. Society, violation The against is of
v. v. v. of Co. of any be to Madhya a of to and fact
Haji v. Union
Ram Norfolk, case given
requirement charges, therefore, to of for of
180. Oilfields v. Norfolk,
Atamaram, the set file alleged
notice
of with prejudice
justice. upon the
person may, proposed cases,
A.P. State v. action building was
blacklist nothe the and and
Wali Ratanji, of Industrial owner The an aside. opportunity.-Moreover,
its
Pradesh the which
the
Government, India, of of the individual.oo however, in
Workers,Mohd., (1949) (1949)
Administrative
concerned
the inadequate materials notice Law
of opportunity 139 J.
counter.entireoriginal of to courtjurisdiction
Punjab, S.C.R.(1951)
167.
the was Cooper
Board requirements a proceedings
to
AIR AIR an without heone be facts
is formal not a
1 Tribunal, 1 statutory of Vilangandan
debar
(1961) AIR and had
charge in ADMINISTRATIVE
tomay as LAW
1960 1973 AII. All opportunity brought Act immaterial be contractor. are regards
E.R. AIR E.R. issued the andprejudiced.o
1972 AIR v. Thecharge.141 no a to determine.132 vary
1977 SC SC 1976 AIR Procedure giving of invalid others dilapidated VWhether defect relaxed hi m as disclosed under
3 109 109
E.RAl.l SC 200. 389. provision, Wandsworth being audi Supreme notice, has circumstances present it have
2538. SC (118). SC 1967 (118). againstorder mentioned asdid accordingcharges.
2313; v. 57. of an alteram without v. been where would where defaulter He v. which
621; Kapoor SC Act, Makers a not been
beingopportunity heard even his Executivegave to
1182. condition the prejudice The contain
1946. the thunder
e Court given, explain 130
hearing
Govindsinghv. Board there notcase the Natsral to
before issuing though noticein quashed
Court partem Development of object the
heard.Boardwhich
the it. invalidate party
from notice a
held Thus,
is t he words
Jagmohan, of has is and, them.133 justice nature is
held of any personhe not must caused
case. taking Engineer,
Although
because the Works, maxim notice
that was because
to
to
Subbarao, hearing adverse may proper to been therefore, of to be
that th e the notice any him. is of
house give give But already indicate
AIR 143 Service or cannot not or violated the held.
the is order a notice contract l35
1981 the it if calling and 24 violation the not of
But proceedings,
(1970) Board's had of Board it thhaed action that have a is inadequacy th e
better is if clearly the
SO action the was be thhours
e
reasonable the aware
of Pvt. unless
a to where
17 lo used the the upon appeared punishednotice question Executive
Supreme
erecie is time view part in
Gu. pon oftia plaint taken party of give of fh to
LA u
High the Ltd the th h. o 1
is to is
 NATURAL JUSTICE AND FAIRNESS 191
wassubject the
to
qualification that no man can be
deprived of his property withcut having
an opportunity of being hear.
The historic case of Ridge v. Baldwin44 has been rightly described as the magna
carta' of natural justice.145 In this case, a Chief Constable had been prosecuted but
certain charges of conspiracy. While
acquitted on
were made by the delivering the judgment certain remarks
presiding judge against the plaintiff'
ieer Considering these remarks, the Watch s character as a senior Police
SCVice. Committee dismissed the plaintiff from
The Court of Appeal decided that the
dministrative authority and was not exercisingWatch Committee was acting as an
judicial or guasiudicial power and
herefore rules of natural justice did not apply to the proceedings of dismissal. Reversing
thodecision of the Court Of Appeal, the House of Lords by a
Or of dismissal could not be exercised without majority of 4:1 held that the
giving a reasonable opportunity of being
heard and withoUt obseving the principles of natural justice. The order of
therefore, not upheld. dismissal was,
In Maneka Gandhiv. Union of India, 46 the passport of the petitioner was
impounded by the Government of India 'in public interest. No opportunity was afforded to
the petitioner before taking the impugned action. The Supreme Court held that the order
was violative of the principles of natural justice.
In Swadeshi Cotton Mills v. Union of India,147 the Government of India by exercising
its power conferred on it by section 18A of the Industries (Development and Regulation)
Act, 1951 took over the management of the petitioner Company. The Company
challenged the said action, inter alia, on the ground of non-observance of the principle of
audialteram partem. The High Court of Delhi held that the requirements of prior notice
and hearing were excluded by the statute. Allowing the appeal, the Supreme Court held
that "in order to ensure fair play in action it was imperative for the government to comply
substantially with this fundamental rule of prior hearing before passing the impugned
order".
In Olga Tellis v. Bombay Municipal Corporation, '98 under the statute the
Commissioner was empowered for removal of construction without notice. However, the
Court held that it was merely an enabling provision and not a command not to issue notice
before demolition of structure. The discretion was, therefore, required to be exercised
according to the principles of natural justice. In the same way when admissions were
given to certain students,but the candidates who were so admitted were not impeled as
parties, The Court ruled that their admissions were not to be cancelled behind their
back 149
In O.P. Gupta v. Union of Indialb0 the facts were that the appellant had retired. After
his retirement he was deprived of his increments above the stage of efficiency bar
retroactively. The Supreme Court held that the Government was bound to hear him
betore the impugnedorder was passed.
statute had
Again in Asst. Collector of Customsv. Bibhuti Bhusan' the relevant
the
given pwer for seizure of goods for aperiod of siX Months. In ordinary course, after
goods.Nevertheless.
vaid period, the person concerned would be entitled to restoration of
period of
Onsufficient cause being shown the said duration could be extended a further
for

144. (1964) AC 40.

145. Allen, Lawand Orders, 1966 p. 242.
146 AIR1978 SC 597.
147. AIR 1981 SC 818.
148. AIR 1986 SC 180.
T49. Aarti Guptav, State of Punijab, AIR 1988 SC 481.
150. AIR 1987 SC 2257.
151. AIR 1989 SC 1884.
 192 ADMINISTRATIVE LAW

six months. The point for consideration before the Supreme Court was whether
duration of six months, the person from whose possession the goods were
entitled to notice and hearing. Accepting the said point in the affirmative, the seizafedter he
Court observed: the right to notice flows not from the mere circumstance that
proceeding of ajudicial nature, but indeed it goes beyond to the basic reason which thSuerepremise ;
to the proceeding its character, and that reason is that a right of a person may be gjves
and there may be prejudice to that right if he is not accorded an opportunity to put
his case in the proceedings". faofowarectedd
Similarly, in Municipal Corpn. of Delhi v. Ajanta Iron and Steel Co.. 152 the facts
that without giving notice disconnection of electric supply was effected on the allegation Weregf
theft of energy by the consumer. Setting aside the said action, the Supreme Court
was not possible to assume the charge as Correct without a full Said
particularly when the service of notice was 'a prerequisite for disconnection.' Itfledged
that
trial
is not cla
as to what was the difficulty before the electric company in serving a notice on the
consumer prior to discontinuation of the supply.
In Shridhar v. Nagarpalika, Jaunpur, 133 the petitioner was appointed by the
municipalityas Tax Inspector. The Commissioner set aside the said appointment without
issuing any notice or g'ving an opportunity of hearing. The Supreme Court quashed the
order of the Commissioner and observed that it was an elementary principle of natural
justice that no person should be condemned unheard.
In Nally Bharat Engineering Co. v. State of Biharl54 the facts were that a senior
supervisor was dismissed by the company for having committed theft. As provided under
the Industrial Disputes Act, 1947,the dispute was referred to the Labour Court, Dhanbad.
While the reference was pending, the workman made an application to the Labour Court to
transter the case to Labour Court, Patna as he was residing at Haripur. The application
was given without any information to the management. The Government acceded to the
request of the workman and transferred the case to Labour Court, Patna without issuing
notice or giving opportunity to the management. A petition was filed by the management
against the said order but it was dismissed by the High Court of Patna because no
prejudice was causedto the company. The matter went inappeal to the Supreme Cour.
Allowing the appeal, the Supreme Court held that fairness required an opportunity o1
hearing ought to have been aforded to the Company before passing the impugned order.
As regards the requirement of prejudice, Shetty J. rightly said:
"The management need not establish prejudice for want of such opportunity
The principles of natural justice know of no exclusionary rule dependent on whether
would have made any difference if natural justice had been observed. The no
observance of natural justice is itself prejudice to any man and proof of prejuol
independently of proof of denial of natural justice is unnecessary."
However, it may be pointed out that there are no universal rules as to the Kind
hearing required by natural justice. The nature of hearing required is to be deterihe
upon aconstruction of the governing statute the nature of function to be discharged ye
reasonable
authority in question and the facts and circumstances of the case in point. If
opportunityand fair hearing is afforded to the party and action has been taken yalty
technicality
authority in accordance with law, it cannot be set aside on the ground of mere
or by artificialexpansion of the principles of natural justice.
Thus, in Maharashtra State Board of Secondary & H.S. Education v. Paritosnh
Suchlength
Supreme Court ruled that the principles of natural justice cannot be carried to

152. AIR 1990 SC 882.

153. AIR 1990 SC 882.
154. (1990) 2 SCC 48.
15¬. AIR 1984 SC 1543.
 NATURAL JUSTICE AND FAIRNESS 193
asto
make it necessary that the candidates
allowea to participnte in the
process appearing in the examination should be
of evaluation
correctness the
of of their performance or to verity the
evaluation
answer books and determining
made by the exaniiners by conducting an inspectior1 of the
the whether there has been a proper and fair evaluation of the
answers by examiners.
life's realities 156
The test of
reasonableness not
is
context of As
Mathew, J. applied in vacuum but in the
horizon of observes:
natural justice involved in the audi "It is not expediernt to extend the
alteram partem rule to the twilight zone of
mere expectations, however, great they may be."157
(a) Oral hearing
Generally, "hearing' means oral hearing where the parties
anresentation to produce witnesses who may be cross-examined. 158have right
But in
to legal
and Ameriça, 160 it is settled as a general rule that in England'
absence of statutory provisions, an
odministrative authority is not, bound to afford to the concerned person an oral hearing. In
India also, the position IS same and oral hearing is not
regarded as a sine qua non of
natural justice. A person cannot claim the right to oral or personal
right is conferred by the statute. 162 hearing, 151 unless such
In the absence of such statutory requirement, the general rule
Supreme Court of India is that natural justice does not necessarily involve propounded by the
a right to oral
hearing. "l am not prepared to accept the contention that a right to be heard orally is an
essential right of procedure even according to the rules of natural justice. That rignt to
defence may be admited, but there is nothing to support the contention that an oral
hearing is compulsory."163
In the case of Union of India v. J.P. Mitterl64 it was held by the Supreme Court that
as the petitioner Judge had been afforded an opportunity to submit his case in writing
denial of an opportunity of personal hearing, even after request, does not violate the
prinples of natural justice.
However, the importance of oral hearing should be emphasised where complex and
technical questions are involved, such as the chemical composition of articles, for the
purpose of applying the Central Excise and Salt Act.165 Again, where states are very high,
it is necessary to give oral hearing. 166 Moreover, if there are contending parties before the
adjudicating authority and one of them is allowed to give oral hearing, the same facility
must be afforded to the other as welI.
(b) Fair hearing
Natural justice is primarily identified with fair hearing. While fair opportunity to be
heard should be given to the parties, the principle does not imply, unless expressly
requirements of natural
provided by the statute, 167 a right to a personal hearing. bÓ The proposed action.
Justice are met only if opportunity to represent is given in view of the

156. A.l.R. 1984 S.C. 1543.

i37. Union of India v. M.L. Capoor, AIR 1974 SC 87.
158. Wade, H.w.R.. Adiinistrative Law, 1988, p. 543. Judicial Review of Administrative Action.
v. Arlidge (1915) AC 190; de Smith,
T93. Local Government BoardAdministrative Law, 1988, pp. 543-47.
1980, pp. 201-03: Wade,
160. F.C.C. v. W.JA. (1949) 337 U.S. 265 (276).
AIR 1950 SC27 (43).
161
A.K. Gopalan v. State of Madras, AIR 1976 SC 2095.
To2. Farid Ahmadv. Ahmedabad Municipality,
AIR 1950
Customs, (1957) SCA764:
SC 27 (43) ;FN. Roy v. Collector of AIR 1966 SC 671 (675)
Ttd. A.K. Gopalan v´State of Madras, India,
SC 493; M.P. Industriesv. Union of
Kapur Singh v. Union of India, AIR 1960
164. AlR 1971 SC 1093. 864).
of India, AIR 1971SC 862
ra ancore Rayons v. Union Prasad Singh, AIR 1989 SC997 (1010-11).
166 Slate of U.P. v. Maharaja Dharmander
A.P.S.A. T.C., AIR 1959 SC
308.
167. Nageshwar Aao v. J.P. Mitter, AIR 1971 SC1093.
Gullapalli
O LOcal Government v., Aridae, 1915 AC 120;Union of India v.
 ADMINISTRATIVE LAW
194

Fair hearing is another a1n of the principles of natural justice. It is

oral hearing is not a part of natural justice
Restating the same position, the Supreme
unless otherwise provided by the tha
Court held that the principles of
establishedstalut,
cannot strait-jacket and their applicability would depend on the facts
be putofineach natural justira
and context case. Therefore, where the officer was not orally heard but
allowed to file written submissions against enhancement of punishment, the C
observed that there is no violation of the rule of fair hearing. 168a
situalix
While upholding the constitutional validity of Sections 18, 19 and 60
Prevention of Terrorism Act, 2000 from the Court held that after an organisation has
declared as terrorist organisation on the basis of material facts before the
Government, post-decisional hearing provided under the law by approaching Certra
the Ceh
Government and the review committee satisfies the requirements of fair hearing. 16e%
As a general rule, it is settled that even where the statute is silent
procedure to be followed by an administrative authority, which determines theabout
rightsthe
individuals or inflicts civil consequences upon them, natural justice would requirs
minimum of fair procedure. 169 What that minimum would be, the position was h
explained by lyer, J. in Mohinder's Case:170
"It can be fair without the rules of evidence or forms of trial. It cannot be fair
appraising the affected and appraising the representations is absent."
Thus ahearing to be fair must fulfil several requirements
() The adjudicating authority should receive all the relevant material which the
individual seeks to produce;
(i) It should disclose all the facts, evidence or material which the authority seeks
use against the individual concerned in making its decision ;
(ii) It should afford to the individual concerned an opportunity to rebut allsuch facts
or material. 171
() Reception of evidence produced by the person.-The adjudicatory authority must
give full opportunity to the affected person to produce allthe relevant evidence in suppor
of his case.172 For fair hearing it is necessary that the concerned party must be given ngt
to present his case and evidence. In Dhakeshwari Cotton Mills Ltd. v. C.I.T17S the tax
payer had produced certain account books which he did not have opportunity to produce
earlier owing to reasons beyond his control. The Income Tax Appellate Tribunal refused to
look into the said account books. The Supreme Court held that such refusal violates the
ruie of fair hearing. Accordingly, the order passed by the Income Tax Appellate Tribuna
was quashed by the Court.
Where the adjudicating authority wrongly refuses to receive evidence, the
proceedings will be vitiated. In Malik Ram v. State of Rajasthan, 174 the issue related to the
scope of enquiry under section 68-D of the Motor Vehicles Act, 1939. The enquiry ofticel
said that the scope of enquiry was confined only to hearing of arguments and not further
Therefore, he rejected the appellant's request for leading evidence. The Supreme Cout
held that the hearing envisaged not merely argument but also evidence which either Paliy
might seek to produce.

168a. Ganesh Santa Ram Sirur v. State Bank of india, (2004) 1SCC 13.
1680. People's Union tor CivllLiberties v. Union of India, (2004) 9 SCU 580.
169. Maneka Gandhiv. Union of India, AIR 198 SC 557. AIR1984
170. Mohinder v. Chiet Election Commissione, AIR 1978 SC 851; Tripathi v. State Bank of India,
SC 373. ProcedureActor
171. For the requirement of afair hearing, see also section 7(c) of the American Administrative oral
case or defenee by be
1946 which provides that "every party shall have the right to present hisCross-examination as may
documentary evidence, to submit rebuttal evidence and to conduct such
required for a full and true disclosure of facts."
1/2. B.A. Kabir v. Principal, AIR1971 Ker. 121: TISCOv. Union of India, AIR 1967 Pat. 375.
173. AIR 1955 SC 65.
174. AIR 196 SC 1575.
 NATURAL JUSTICE AND FAIRNESS 195
If the
adjudicating authority has issued notice to the person concerned and he
chooses to be absent from the proceeding inspite of repeated intimation, 175 the
requirement of fair hearing is
atisfied where the opportunity tofulfilled. Similarly the requirement of natural justice is
does not avail of the opportunity ofmake representation
making has been
a representation. 176 given to the party but he
(i)Disclosure of
lasedbefore it in courseMaterials.-The adjudicating
of proceedings. It cannot useauthority must disclose all material
aiven to the party any material unless the opportunity
against whom it is
Mils V. C.I.T.," the Supreme Court sought to be used. Thus, in Dhakesh wari Cotton
quashed the
Annellate Tribunal on the ground that it did not discloseorder passed by the Income-tax
some
nroduced by the department. There are a large number of casesevidencewhere
to the assessee
avidence to the affected person has been held to be fatal to the hearing non-disclosure of
proceedings.o
Similarly, natural justice is infringed ifthe adjudicatory body decides a matter on the basis
of confidential inquiries unknown to the party concerned. 179
(iü) Rebuttal of adverse evidence.-For fair hearing it is not
should know the adverse material but it is further necessary that enough that the party
he must be given an
oDportunity to rebut the evidence. The adjudicating authority must give right to the party
concerned to rebut the evidence and material placed by the other side. In Bishambhar
Nath v. State of U.P.,180 in revision proceedings, the Custodian General accepted new
evidence produced by one party but no opportunity was given on the other side to meet
with the same. The Supreme Court held that the principles of natural justice were violated.
Thus it is necessary that the adjudicating authority must disclose the evidence which it
wants to utilise against the person concerned and also give him an opportunity to rebut the
same. For making the opportunity to rebut evidence meaningful, it is necessary to consider
two factors: cross-examination and legal representation.
A. Cross-examination
Cross-examination is one of the most efficacious methods of establishing truth and
exposing falsehood. But it does not necessarily mean that the right of crosS-examination of
witnesses should be given to the person concerned. It depends upon the facts and
circumstances of each case and to the statutory provisions. 181
Generally, in cases of domestic inquiries by employers against their employees in
under
the area of labour management relations,82 and also in disciplinary proceedingsby a statutory
Articie 311 of the Constitution of India against civil servants,183 or
of witnesses is
Corporation against its employeesl84, the right of cross-examination
fairness.
regardedas an essential content of natural justice and
respondent-assessee on
In State of Kerala v. K.T. Shaduli,l8 the returns filed by the to be incorrect, since
Tax Officer
the basis of his books of account appeared to Sale wholesale dealerswere not mentioned
accounts of
certain sales appearing in the books of applied to the Sales Tax Officer for giving
in the account books of the respondent. He was rejected by him. Holding that
opportunity to cross-examine wholesale dealers which

SC 646.
175. Roshan Lal v. Ishwar Das. AIR 1962
176. John v, Stateof T. C.. AIR 1955 SC 160.
177. AIR 1955 SC 65. Orissa v. Binapani, AIR 1967 SC
AIR 1951 SC 1623; State of Bishambhar
1/8. State of Madhva Pradesh v, Chintaman, Nath v. State of Utar
Imports, (1962) 1 SCJ 93;
Gvindii v. Deputy Chief Controller of
1269; 174; North Bihar Agency,.
Mulchand v. Collector, AIR 1968 Cal.
Pradesh, AIR 1966 SC 573: Sovachand
State of Bihar, AIR1981 SC 1758. D.C. Aggrwal, AIR 1993
Calcutta University, AIR 1974 Cal. 187; State Bank of India v.
T79. Khagendra Nath v.
SC 117.
180. AIR 1966 SC 573 1980, pp. 214-15.
Smith, Judicial Review of Administrative Action, Meengla ss Tea Estate v. WWorkmen.,
AIR 1963
TOI. de karunamoy, AIR 1968 SC 266 ;
182. Central Bank of Iodia v.
Verma, AIR 1957 SC 882
SC 1719.
Union of India, AIR 1958 SC 300; Union of Indiav. T.A.
T83. Klem Chand v. Narain, AIR 1980 SC 2117.
184. U.P. Warehousing Corporation v. Vijai
185. AIR 1977 SC 1627.
196 ADMINISTRATI
the denial of dealer's request to cross-examine wholesale dealers was a denial
hearing, the Supreme Court stated that it was only through
assessee could establish that what was mentioned in
his account books was cross--examination thal
that mentioned in the accounts of whole sale dealers was
wrong.
the Supreme Court in Town Area
correct ahe
Tho same principle was reiterated bydepartment
Jagdish Prasad.186 In this case the
explanation and thereafter straight away passed the
submitted the
dismissal order. The Court
the order holding that the rule of fair hearing includes an opportunity to
Comsetmit,easidyeto
chargesheet
witnesses and lead evidence.
Where evidence is given viva voce against a perSon, he must have
cros -examina
hear it and to put the witnesses in cross-examination. Refusal to allow
examination would amount to violation of the principles of natural justice. 187 such
opportunity
GrOSs-
Fair hearing depends on the facts and circumstances of each case. 188 \n
Chand Chellaramn v. C.l.T., 189 the Supreme Court held that when the Kishan
was relying on a letter said to have been written by the Manager of the Income-tax Officer
Bank to the .T
it was necessary to provide an opportunityto the assessee to
cross-examine the
On the other hand, in externment proceedingsl90 and in proceedings betore s Manager
customs authorities to determine whether goods were smuggled or not, 191 the right i
cross-examination is not Considered to be necessary.
In State of J. & K. v. Bakshi Ghulam Mohammed,192 the Government of Jammy ans
Kashmir appointed a Commission of Inquiry to inquire into charges of corruption and
maladministration against the Ex-Chief Minister of the State. The request f Baks
Ghulam Mohammed to cross-examine the witnesses who had filed affidavits before the
Commission supporting the allegatiohs against him was denied. The decision of the
Commission was challenged before the Supreme Court of India and one of the grounds df
the challenge was thatthe denial of the opportunity to cross-examine witnesses violates
the rule of fair hearing. Disallowing the challenge, the Supreme Court observed that
where, no oralhearing is held and only when statements are called for from the affected
party, there is no right of cross-examining witnesses.
In U.S.A. the right to cross-exanmination is ensured under due prOcess clause and
also under the Administrative Procedure Act, 1946. In England the position is the same as
in India and the Courts are seeking to work out the details of the right to cros
examination, 193
B. Legal Representation
Ordinarily the right of representation by a lawyer in any administrative proceeding
not considered to be indispensible part of natural justice as oral hearing is not includeo
the minimaof fair hearing.94 In Pet v. Greyhound Racing Assn. (l),195 Lyell, J. observeu
"I find it difficult to say that legal representation before a tribunal is an elementay
feature of the fair dispensation of justice. It seems to me that it arises only in asouey
which has reached some degree of sophistication in its affairs."
But speaking generally, it can be said that the right to be represented by counsea
been recognised in Administrative Law. Professor Allen196 rightly saVS: "Experience
taught me that to deny persons who are unable to express themselves the services ofa

186. AIR 1978 SC 1407.

187 Meenglas Tea Estale v. Workmen, AIR 1963 SC 1719.
188. State of Gujarat v. Anand Municipality, AIR 1993 SC 1196.
189 AIR 1980 SC 840.
190. Gurbachan State of Bombay, AIR 1952 221
v.
191. Kanungo Co. v. Collector of Customs, AIR SC
1972 SC 2136.
192. AIR1967 SC 122.
193. R. v. Gaming Board exparte Benaim, (1970) 2 B. 417. 1978
AIR
194. Kalindl v. Tata Locomotiyes, AIR 1960 SC 914; Mohinder Singh Gill v. Chiel Election Commr
SC 851.
195. (1969) 2 All E.R. 221.
196. Administrative Jurisdiction, 1956, p. 79.
 ADMINISTRATIVE LAW
196 was a
request to cross-examine wholesale dealers denial
hearing.
the the
denial of Supreme
dealer's Court stated that it was only through crOSS-examinnation thal
assessee could establish that what was mentioned in his aCCOunt books was correct
he
of whole sale dealers was wrong.
that mentioned the accounts
The samein principle was reiterated bythe Supreme Court in Town Area Commitee,
Jagdish Prasad 186 In this case the department submitted the chargesheet,
explanation and thereafter straight away passedthe dismissal order. The Court set asida
the order holding that the rule of fair hearing includes an opportunity to cross-examina
witnesses
Where lead evidence.
and evidence is given viva vOce against a person, he must have opportunty ,
hear it and to put the witnesses in croSS-examination. Refusal to allow such GrOss.
amount to violation of the principles of natural justice. 187
examination would
Fair hearing depends on the facts and circumstances of each Case. 188 In Kishan
Chand Chellaramv. C/.T189 the Supreme Court held that when the Income-tax Otficar
by the Manager of the Bank to the r
was relyingon a letter said to have been written
to the assessee to cross-examine the Mars
it was necessary to provide an opportunity
On the other hand, in externment proceedings'0 and in proceedings betora .
were smuggled or not, 191 the right od
customs authorities to determine whether goods
cross-examination is not considered to be necessary.
In State of J. &K. v. Bakshi Ghulam Mohammed, 92 the Government of Jammu ara
Kashmir appointed a Commission of Inquiry to inquire into charges of corruption art
maladministration against the Ex-Chief Minister of the State. The request of Baksh
Ghulam Mohammed to cross-examine the witnesses who had filed affidavits before the
Commission supporting the allegations against him was denied. The decision of the
Commission was challenged before the Supreme Court of India and one of the grounds d
the challenge was that the denial of the opportunity to cross-examine witnesses violates
the rule ot tair hearing. Disallowing the challenge, the Supreme Court observed that
where, no oral hearing is held and only when statements are called for from the affected
party, there is noright of cross-examining witnesses.
in U.S.A. the righ.t to cross-examination is ensured under due process clause and
aiso under the Administrative Procedure Act, 1946. In England the position is the same as
in India and the Courts are seeking to work out the details of the right to cros$
examination 193
B. Legal Representation
Ordinarily the right of representation by a lawyer in any administrative proceeding s
not considered to be indispensible part of natural justice as oral hearing is not inctuded n
the minima of fair hearing. 194 In Pett v. Greyhound Racing Assn. (W),195 Lyel, J. observed
"I find it difficult to say that legal representation before a tribunal is an elemenie
feature of the fair dispensation of justice. It seems to me that it arises only in a s
which has reached some degree of sophistication in its affairs."
But speaking generally, it can be said that the right to be represented by cou hs
been recognised in Administrative Law. Professor Allen 196 rightly says:the
"Expertei
taught me that to deny persons who are unable to express themselves Servicesaofa

186 AIR 1978 SC 1407

187
Meengias Tea Estale v.
188. Slale of Gujarat v. AnandWorkmen, AlR 1963 SC 1719.
189 AIR 1980 SC 840. Municipality, AIR 1993 SC 1196.
190. Gurbachan v. State ot
191. Kanungo Co. v. Collector Bombay, AIR 1952 SC 221
of Customs, AlR 1972 SC 2136.
192 AIR 1967 SC 122.
193. R. v. Gaming Board exparte 1978
194. Kalindi v. Tata Benaim, (1970) 2 B. 417 AIR
Locomothvee, AIR 1960 SC 914; Mohinder Singh Gill V. Chie/ Eection Commr:
SC 851
195. (1969) 2 All E.R. 221.
196. Administrative
Jurisdiction, 1956, p. 79.
 NATURAL JUSTICE AND
competent sspokesman is a
197 Lord Denning very mistaken FARNESS 197
observed: own a man'
only has a right to speak by his"When
kindness." In
s reputationPett v.
Grehound
solicitor.. Even a prisoner can mouth. He has or
livelihood is at Racing AsS:
stake, he not
have his friend." also a right to
According to de Smith 198 speak by counsel O
"legal
statutory tribunals
disciplinary
is
desirable,
proceedings and representation
of the right quality before the
in a purelythat a person threatened with social or financial ruin by
denied legal representation," domestic forum may be gravely prejudiced if he is
Where there is a right to appear in
volved,the denial of legal person or a technical matter of law and
hearing. 199 representation
Franks Committee by fact is in
has also counsel is considered as an antithesis of fair
nresentation shoula not be cunaled save inrecommended200 that the
exceptional circumstances. right of legal
In U.S.A. the position is that
Albe Administrative outside the statutory requirement under section 6(a) of
Procedure Act,
1946, the right to appear through counsel must be
deduced from the requirement of Tair hearing' implied in the constitutional guarantee of
due process,201
In India certain
statutes do not permit legal representation; e.g. factory laws ;
statutes permit legal representation with the permission certain
of the administrative tribunal
concerned; e.g. Industrial Disputes Act, 1947;while in certain statutes the right to be
represented by counsel is recognised; e.g. Income Tax Act, 1961.
However, where the matter is very simple, e.g. whether the amount in question is
naid or not,202 or whether the assessment orders were correct,203 legal representation has
been disallowed. On the other hand the Courts have held that in situations where the
person is illiterate,20 or the matter is complicated and technical,205 expert evidence is on
record,206 or a question of law is involved²0 or the person is pitted against a trained
prosecutor,208 he should be allowed to engage a legal practitioner to defend him, lest the
scales should be weighed against him.208 These are all relevant grounds and in these
circumstances refusal to permit legal assistance may cause serious prejudice to the
person Concerned and may amount to denial of fair hearing.210
Thus, in M.H. Hoskot v. State of Maharashtra", while importing the concept of fair
procedure' in Article 21 of the Constitution, the Supreme Court ruled that the right to
legal service who is indigent or
personal liberty implies provision by the State of free In Khatri v.
the ends of justice so demand.constitutional
disabled from securing legal assistance where held that the State is under
further
State of Bihar212 the Supreme Court but
poor accused not only at the stage of trial
Obligation to provide legal assistance to the
at the time of remand also. be
Satpathy v. P.L. Dani the Court held that the accused must a
Similarly in Nandini
custodial interrogation and the police should wait for
gven legal representation in
reasonable time for the arrival of a lawyer.

197. (1968)2 AlI E.R. 545.

Administrative Action, 1980, p. 214.
T0. Judicial Review of Committee, (1891) 1Q.B. 373.
Mary Assessment
H. V. St. 565 (574).
200. (1957) Cmnd. 218. (1970)397 US 256;Goss v. Lobez, (1975) 419 US
GOldberg v. Kelly, SC 1686.
Union of Indla. AIR1976 1974 SC 1589.
sv. H.C. Sarinv. India, AIR
203. Krishna Chandra v. Union ofGanjam, AIR 1959 Ori 152.
204. James Bushi v. Collector of
1962 Ori 78. FLR141(M.P.).
205. Natya Ranjan v. State, AIR Coop. Societies, (1966) 12
206. Harish Chandrav. Registrar of AIR1962 Guj. 197. 2178.
207. J.J. Mody vv. State of Bombay,
Collector of Customs, AIR 1972 SC
208. Subramaniamv.
.
209. lbid.
 ADMINISTRATIVE LAW
198
has libralised the procedural restrictions in
In some situations the Court
representation through a counsel by the party. Article 22(3) (b) of the
the matter
expressly denies theright to counsel to a detenue in preventive detention
spite of such constitutional prohibition, the Supreme Court in A.K. Roy v. Union of
ruled that if the government or the detaining authority was represented by Indi a
In
proceediConstni ugstio.n
practitioner or a legal advisor before the Advisory Board, the detenue will
such a right under Articles 14 and 21. always lhavgega
The same approach was adopted by the Court in Board of Trustees of the o
Bombay v. Diip Kuma?14 a case which involved disciplinary proceedings Port an
against
employee of a statutory authority. It was held that it will be violation of the rule f
justice if the employer is represented by a presenting officer who is legally trained
the enquiry officer while the employer denies such a facility to the employee. before
C. Right to know Evidence
The right to know the materials on which the authority is going to make adecision is par.
the right to defend onself. There are several judicial pronouncements where noe
disclosure of evidence to the affected has been held to be fatal to hearing proceedings 21;
The general principle is that the adjudicating authority must base its decision on the
material known to the parties. No evidence can be taken into consideration which has ne
been known to the party concermed and for which no opportunity has been aftorded '
rebut.216 Therefore evidence must not be given behind the back of the other party but in
his presence, so that if written evidence is givern it must be made available to the other
party to contradict it.217 It would be violative of natural justice to take evidence behind the
back of the concerned person. Acandidate was debarred from appearing in the B.A
examination for twO years because he had used unfair means at the examination. In SP
Paul v. Calcutta University218 the Calcutta High Court held that there was violation of
natural justice in so far as evidence of witnesses had been heard behind the candidate's
back which was not known to him.
However, this decision does not imply that the administrative agencies cannot obtain
information in the manner they consider best. The main thrust of the case is that whatever
information is obtained by the administrative authority must be disclosed to the other party
and an opportunity to rebut it must be given.
Such was the approach adopted by the Court in Ceylon University v. Femando9
where the Privy Council upheld the order of the University under the circumstances where
the evidence of the witnesses was taken at the back of the student charged with
misconduct but he was informed of the statements of the witnesses. The Privy Councl
held that there was no violation of natural justice.
The Supreme Court of India followed this position in Hiranath Misra v. Rajenaa
Medical College0, In this case an enquiry was held against some male students On w
charge of entering girls Hostel and indulging in indecent behaviour towards some gs
The Enquiry Committee recorded the statements of the
complainant girls but n
213. AIR 1982 SC 710.
214. AIR 1983 SC 109.
215. State of Madhya Pradesh v. Chintaman, AlR 1951 SC
1623: State of Orissav. Binapani, AlR 19o
Bishambhar Nath v. State of Uttar Pradesh, AIR 1966 SC 573.
216. Kishin Chand Chellaram v. Income Tax
217. Commr., AIR1980 SC
Stafford v. Minister of Health, 1946 KB 532; Gritfith and Street, 1217.
Principles of Administrative Law, 2nd. E.,; p.
158 ; Prayag Tushni Lal v. Collector, AIR 1962 Ass. 100, D.Das v. Chairman Appellate Board AIR1961
Ass. 56.
218. AIR 1970 Cal. 282 : See also
219. (1960) 1 WLR 223. Narayan v. Calcutta University, AIR 1982 Cal. 1.
220. AIR 1973 SC 1260.
 NATURAL JUSTICE AND FAIRNESS 199
ahsence of the appellants. The Committee found them quity and therefore an
order was served on them. The said order was challenged because evidence wasexpulsion
taken at
their back. The Court held that there was no denial of natural justice as the gist of the
evidence was brought to their notice and they were provided with an opportunity to rebut it.
The Court observed that the girls would not have ventured to make
the statements in
oresence of the appellants except at a great risk of retaliation and
Thus it follows that any administrative agency may inform tsharassment.
considers best. It may also take an official notice?2 of certain things mind
in any manner it
and may
rocord consultation but fairness demands the party must know all these makeif off the
form part of the agencies decision. matters these
Sometimes before initiating an action against an individual, a
preliminary inquiry may
he made into the matter. The question is whether such report should be known to the
aftected person. In T.V.R. Radhakrishna v. State of Tamil Nadu,222 the Collector and the
Director of rural development submitted reports to the government about the working of a
Panchayat. Then the government issued notice under the relevant statute calling upon
Panchayat to show cause why it should not be dissolved. The order was challenged
because the copies of the reports had not been given to the petitioners. The Supreme
Court held that natural justice was not violated as the substance of the reports had been
given in the show-cause notice which was issued to the Panchayat.
The material which does not form basis of the decision is not required to be
disclosed to party concerned. Thus in Krishna Chand v. Union of India?23, a preliminary
inquiry was conducted into the charges against the petitioner. Thereafter, a formal inquiry
was instituted against him. The report of the preliminary inquiry was not furnished to the
petitioner. The Supreme Court held that the petitioner was not entitled to get a copy of the
report unless the Enquiry Officer had relied on it.
However, if the Enguiry Officer wanted to rely on the report for his conclusions, then
a copy of the same must be given to the person concerned.22 Such view of the Supreme
Court seems to befair and rational. But, if the preliminary report is given to the Enquiry
Officer, and not to the partly concerned, then in such a situation, failure togive a copy of
the report to partyconcerned, party amounts to denialof fair hearing. Such was the ruling
of the Privy Council in the Kanda case.225 The Privy Council held that the adjudicator
should not receive any evidence behind the back of the concerned party. This principle is
somewhat wider than the above ruling of the Supreme Court, for under it merely because
a copy of the preliminary report was given to the Enquiry Officer, irrespective of whether
he relied on it or not, the concerned party became entitled to get a copy thereof as wel.
(d) Opportunity of being heard: Fair Trial.
The requirement of the opportunity of being heard is apart of fair procedure. Any
order passed bythe adjudicating authority without providing the opportunity of being heard
proceedings
1o the party concerned is bad and can be set aside.20 In administrative
whereby some person is going to be affected, the opportunity of being heard has special
importance and utility. There are a number of statutes providing for the opportunity of
being heard.
Thus, the Commission of Inquiry Act provides that it any person is likely to be
prejudicially affected by an inquiry made under this Act, such person must be given "a
reasonable opportunity of being heard."

Procedure Act, 1946, Sections 5 and 7.

6e. See American Administrative
C22. AIR 1974 SC 1862.
223. AIR 1974 SC 1589.
Sharif, AIR 1982 SC 937.
e4. State of Uttar Pradesh v. Mohd.
225. B. Surinder Singh Kanda v. Government of Malaysia, (1952) Malaya L.J. 169.
226 Harbansh Lal v. Commander Head Quarter 135 Works Engineer, 1970
Lab IC 1449
200 ADMINISTRATIVE LAW

The expression 'reasonable opportunityto show cause' in Article 311(2) has

interpreted to mean that for the purposes of a termination of service or reduction in
under that Constitutional provision, aninquiry of the 'trial' type will be required rark
in
includingthe right of a delinquent officer to adduce evidence and to
confront
the India
adduced against him, 227 evidencA
Even in ordinary statutes which relate to termination of employment the right t,
witnesses has been deduced from the
examine and cross-examine
"reasonable opportunity of being heard" although Article 311 (2) of the Constitution ie expression
applicable228 Natural justice postulates that the opportunity of being heard shoud
provided to the person who is affected by an administrative proceeding, evern though he
provide for
statute under which such proceeding has been authorised does not
The opportunity to be heard tequires two things :
heaDng,
(a) The opportunitymust be given;22
(b) The opportunity must be reasonable.
Thus reasonable opportunity of being heard should be provided.
Requirements of the reasonable opportunity of being heard.
The expression 'reasonable opportunity of being heard requires that the conceme
Confront or which
party shall be made aware of the facts and arguments which he has to
whatever material t
have been produced against him. The other requirement is that
arguments he presents in support of his statement must be fairly considered by the agerc
concerned. The matter should be decided by the adjudicator himself and should not be
decided in haste. This point is being discussed as follows:
adjudicatcr
) Acting under dictation.-Any administrative agency invested with
rule aga1rs
power must exercise such power in exercise of its own judgment. This
the adjudicatng
dictation postulates that the decision must be actually his who decides. If
authority decides the matter at the direction of any other authority, then there is violation ot
Officer,230 while assessing
fair hearing. In Mahadayal Prem Chandra v. Commercial Tax Officer was of the opinion
the appellant to tax on facts as established, the CommercialTax
then he referred the matter o
that the assessee was not liable to pay sales tax. Even
Senior Officer for his opinion and on his direction, the Commercial Tax Officer impose
the principle of natural justc
sales tax on the assessee. The Supreme Court held that
India
were violated in such situations. Similarly in Orient Paper Mills v. Union of
ou
directions from the Collector, the Deputy Superintendent issued order levying excise
The SupremeCourt quashed the impugned order.
aye
() Making decision in haste.-Fair hearing postulates that the administrative
P.A. to ColectoPubic
must not make decisions in haste. In the case of City Corner v,
Additional District Magistrate,32 the appellant was given licence under Places Rs.
27,000an
Resort Act, 1888 for conducting skill games and dance. He spent about
1975 the Additional District Magsna
put up a temporary structure. On January 21, licence should not be revoked becaus
issued notice to him to show cause why the associations have raised objections backont
Superintendent of Police and two other local wroteSummary
of licence. The appellant received notice on January 25, 1975 and
the grant material because theon Januay
27, 1975 for the the supply of original adverse revoked
January Without waiting for a reply, the licence was
received was mi_leading.
SCC438
AIR 1958 SC 300. 2
Verma, AIR 1957 SC 882; Khem Chand v. Union of India. Customs, (1973)
Union of India v. v. Collector of
227. AlR 1984 SC 273; Kanungo
228. Tripathi v. State Bank of India, SC 136.
Kapoor V.Jagmohan, AIR 1981
v. Anand, Municipality, AIR 1993 SC 1196.
229. State of Gujrat
230. AIR 1958 SC 667.
231 AIR1970 SC 1498.
 201
NATURAL JUSTICE AND FAIRNESS

Court ruled that the order passed post-haste without furnishing the
28, 1975. The Supreme already was sutficient,
copies of adverse material or informing that the summary supplied
m
iolative of the fundamentals of natural justice. Similarly, in S.P.Kapoor v. State TT
was constituted on the very
Himanchal Pradesh,233 a Departmental Promotion Commitee
candidates. When the Committee was
aort day on the finalisation of seniority list of certain
constituted, cne of its members was on leave for ashort period, the person officiating was
Selections were made and
included in his place as a member of the Committee.
appointment orders also issued on the very day of the constitution of the Committee.
on the
the whole matter was
Ouashing the action, the Supreme Court held that the way interested in rushing
higher-up was
completed in haste gives rise to suspicion that some
afresh.
the decision and hence the matter requires to be considered