PRINCIPLE OF NATURAL JUSTICE

PAPER OF THE INTERNATIONAL YOUTH OF WEST AFRICA

© 2015,
Facilitated by: Promise Edem Nukunu

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NATURAL JUSTICE

“It is beyond doubt that there are certain canons of judicial conduct to

which all tribunals and persons who have to give judicial or quasijudicial

decisions ought to confirm. The principles on which they rest

are, we think, implicit in the rule of law. Their observance is demanded

by our notional sense of justice”.

- The Committee on Minister’s Powers

INTRODUCTION

In the olden days of laissez-fair practice, when industrial relations were

governed and administered by the unscrupulous and harsh weighted

law of hire and fire, the management was in supreme command and at

its best with the passage of time, notions of social justice developed

and the expanding horizons of socio- economic justice necessitated

statutory protection to the workmen. The freedom to hire men/women is

embedded in the management philosophy and thinking and the liberty

is restrained to firing them arbitrarily or at its own will.

It is too late in the day now to stress absolute and unconditional

freedom of an employer to impose any condition which he likes on his

employee. For the management, to get rid of an unproductive,

undesirable and erring employee, shall have to initiate disciplinary

action against him as per the provisions of Standing Orders or Service

Rules and by following principles of natural justice in holding the

domestic enquiry for proving the alleged misconduct against him.

The handling of the disciplinary matters has become the most difficult

task of the management as well as for the defence. For the

management, it is an extremely volatile matter in industrial relations

and any pitfall on this score is bound to fill a cup of miseries for the

management. He cannot axe an employee at his own will. On the other

hand for the defence representative, it is not only matter of defending

the delinquent but his ability to lead the workmen is also at test.

ORIGIN OF THE PRINCIPLES OF NATURAL JUSTICE

It is said that principles of natural justice is of very ancient origin and

was known to Greek and Romans. The Principles were accepted as

early as in the days of Adam and of Kautilya’s Arthashastra. According

to the Bible, when Adam & Eve ate the fruit of knowledge, which was

forbidden by God, the latter did not pass sentence on Adam before he

was called upon to defend himself. Something was repeated in case of

Eve.

Later on, the principle of natural justice was adopted by English Jurist

to be so fundamental as to over-ride all laws.

The principles of natural justice were associated with a few ‘accepted

rules’ which have been built up and pronounced over a long period of

time. The word ‘Natural Justice’ manifests justice according to one’s

own conscience. It is derived from the Roman Concept ‘jus - naturale’

and ‘Lex naturale’ which meant principle of natural law, natural

justice, eternal law, natural equity or good conscience. Lord

Evershed, Master of the Rolls in Vionet v Barrett (1985, 55LLJ QB,

39, Page 45) remarked, “Natural Justice is the natural sense of what is

right and wrong.”

THREE IMPORTANT PRINCIPLES OF NATURAL JUSTICE

1. Nemo debet esse judex in propria causa: No man must sit in

judgment in his own cause, or the deciding authority must be

impartial and without bias.

It is also called as the ‘doctrine of bias’ as the judge may have a

prejudice in the case. It has been pithily put by Sir Edward Coke,

namely, Vacate, Interrogate and Judicate, i.e., call, question, and

adjudicate. However, this concept has undergone lot of changes in

recent times, but fundamental still stands the same.

Types of Bias: There are three types of Bias -

(i) Pecuniary Bias:

1. Dimes vs. Grant Junction Canal. (1852,3 HLC 579).

2. Jeejeebhoy vs. Asst. Collector of Thana. (AIR 1965 SC 1096)

(ii) Personal Bias:

1. Personal friendship - A.K. Kraipak’s Case.

2. Personal Hostility - Mineral Development Ltd. v State of Bihar,

(AIR 1960 SC 468 - also AIR 1976 SC 2428)

3. Family relationship.

4. Professional relationship.

5. Employer & Employee.

(iii)Bias as to Subject Matter:

1. Partiality - State of U.P. v Mohammed Noor

(AIR 1959 SC 86 also AIR 1967 SC 4080)

2. Departmental Bias - Gullapalli Nageswara Rao v APSRTC.

(AIR 1959 SC 308)

3. Prior Utterances and Pre-judgment of issues - K.S. Rao v State of

Hyderabad. (AIR 1957 AP 614)

Real Likelihood of Bias

“Nothing is to be done which creates even a suspicion that there has

been an improper interference with the course of justice”

-Lord Hewart C.J.

“Justice must be rooted in confidence; and confidence is destroyed

when right minded people go away thinking”.

- Lord Denning.

2. Audi Alteram Partem: Hear the other side or both the sides must

be heard or one should not be condemned unheard. In other words, No

person accused of any charge or likely to suffer any civil

consequences, must be adjudged unless and until he is aware of the

proceedings together with a notice thereon and an opportunity to

present his case fully.

(i) Notice

(ii) Hearing - Ridge v Baldwin,

State of Kerala v K.J. Shaduli, (AIR 1977 SC 1627)

Hiranath Mishra v Principal,Rajendra Med.College,(AIR 1973 SC 1260).

The right of representation by a lawyer is not considered to be a part of

natural justice and it cannot be claimed as of right, unless the said

right is conferred by statute. Under the Industrial Disputes Act, 1947,

the appearance of advocate is allowed with the permission of the

tribunals concerned.

3. Reasoned Decisions or Speaking Orders

It is an order speaking for itself and giving reasons. Lord Denning

says, the giving of reasons is one of the fundamentals of good

administration.

Three Grounds on Which it Stands

(i) The party aggrieved has the opportunity to demonstrate before the

appellate or revisional court that the reasons which persuaded the

authority to reject his case were erroneous;

(ii) The obligation to record reasons operates as a deterrent against

possible arbitrary action by the executive authority invested with

judicial power; and

(iii) It gives satisfaction to the party against whom the order is made.

The power to refuse to disclose reasons in support of the order is

of an exceptional nature and it ought to be exercised fairly,

sparingly and only when fully satisfied by the exigencies of

uncommon situations.

1. Siemens Engineering v Union of India (AIR 1976 SC 1785).

2. Maneka Gandhi v Union of India. (AIR 1978 SC 597).

The principles of natural justice have for sometime past, come into

common use in our country. But it is difficult to ascertain from the law

reports or other source as to how these principles came to be applied

in the field of Industrial Law. There is no legal provision found

anywhere which prescribes them.

The Patna High Court in Raj Kishore Prasad Jaiswal v Subak Narain,

(AIR 1959) has aptly observed:

“It is well-established rule of law that rule of natural justice is applied

only where the law itself is silent and is not inconsistent with what it

provides, but where any provision as to the rule of natural justice is

expressly or by necessary implication negatived by law that cannot be

a ground for holding that the enactment giving that law is ultra vires or

unconstitutional”.

The Principles of natural justice are enforceable on all courts of law,

general or special, all tribunals statutory or otherwise, and all persons

or bodies exercising a judicial or quasi-judicial function by statute or by

agreement between the parties. This applies equally to any domestic

enquiry.

In the Province of Bombay v Madhukar, AIR 1952 Bom. 37, 46 Vyas

J concluded.

“It is clear that all that is meant by compliance with the rules of natural

justice by a domestic tribunal is that the tribunal must act honestly and

in good faith, and must give the delinquent a chance of explanation

and defence. If its rules postulate an enquiry, the delinquent must have

a reasonable opportunity of being heard and of correcting and

contradicting relevant statement prejudicial to his view.”

Model Standing orders in its sub-clause (4) of clause 14 provides that

no order or dismissal shall be made unless the workman concerned is

charge-sheeted and given adequate opportunity to explain his alleged

misconduct. Standing orders, applicable to an industrial establishment

generally prescribe a procedure for initiating disciplinary action against

workmen. While taking so, it is always necessary to follow a set of

approved and well accepted procedures.

Sri S. Chakravarthi, in his book “Natural Justice”, has very aptly

summarised the constituents of the rules of natural justice. They are:

Ø  Substantial requirement of justice shall not be violated.

Ø  The tribunal must give both the parties an opportunity of being

heard and stating their case and view.

Ø  Notice to be given to the parties about when the judge will proceed

with the matter.

Ø  The tribunal should act honestly and impartially.

Ø  Must not be at the dictation of others to whom no authority has

been given by law.

Ø  There must not be malversation of any kind.

Ø  A person cannot be a judge in his own cause.

Ø  The least bias or prejudice on the part of the person deciding the

cause will vitiate the order.

The principles of natural justice could therefore, be summarised as

follows:

1. That every person whose rights are affected must have a

reasonable notice of the matter he has to meet.

2. That he must have reasonable opportunity of being heard in his

defence.

3. That the hearing must be by an impartial person, i.e. a person who

is neither directly nor indirectly a party to the case. One who has

an interest in litigation is already biased against the party

concerned.

4. That the authority hearing the case must act in good faith and not

arbitrarily but reasonably.

APPLICATION OF NATURAL JUSTICE IN DISCIPLINARY

PROCEEDINGS

The principles of natural justice are not recognized as fundamental

rights under the Constitution of India (vide S.C. in the A.K. Raipak Vs.

Union of India). Since the term ‘Natural Justice‘ is vague, it implies a

number of other requirements, observance of which is essential if one

has to comply with the principles of Natural Justice. Moreover Natural

Justice in favour or against depends of varies from case to case.

Therefore it becomes all the more difficult to adhere to principles of

Natural Justice.

In one case the Madras High Court has set out the Requirements of

Natural Justice in the following words:

All enquires, judicial, departmental or other, into the conduct of

individuals must confirm to certain standards;

1. The person proceeded against must be given a fair and reasonable

opportunity to defend himself.

2. The person charged with the duty of holding the enquiry must

discharge that duty without bias and certainly without

vindictiveness.

3. He must conduct himself objectively and dispassionately not merely

during the procedural stages of the enquiry, but also in dealing with

the evidence and the material on record when drawing up the final

order.

4. The conclusion must be rested on the evidence and not on matters

outside the record, and

5. That it is not based on misreading of the evidence.

C. Gabriel vs. State of Madras, (1959 2 M.L.J. 15 MAD HC.)

In another case, Allahabad High Court has summarised the principles

of Natural Justice in the following words:

1. That every person whose civil rights are affected must have a

reasonable notice of the case he has to meet.

2. That he must have reasonable opportunity of being heard in his

defence.

3. That the hearing must be by an impartial tribunal, i.e., the case,

Nemo debet esse judex in propria cause.

4. That the authority must act in good faith, and not arbitrarily but

reasonably (Mukhtiar Singh Vs. State of U.P. AIR 1957 ALL. 297,

301)

Requirements of the principles of natural justice are varied. They are:

1. Variation due to subject mater of the dispute.

2. Variation due to different constitution of the tribunals.

3. Variation due to different circumstances

4. Variation due to different facts in different cases.

5. The provisions of natural justice exclude oral enquiries and

preliminary enquires.

6. Article 311(2) of the Constitution speaks of “Reasonable

Opportunity” but substance of the constitutional guarantee is

nothing but compliance with the principles of Natural justice.

The principles of Natural Justice can be said to be inferred from the

protection given to employees under article 311 that they would be

given reasonable opportunity to defend themselves, (ART 311 (1) says

no person who is a member of the civil service of the Union of an all

India Service, or holds a civil post under the Union shall be dismissed

or removed by an authority subordinate to that by which he was

appointed.)

Reasonable Opportunity: As explained in Khem Chand Vs. Union of

India, by Chief Justice S.R. Das, “reasonable opportunity” is:

(a) An opportunity to deny his guilt and establish his innocence which

he can only do, if he is told what the charges leveled against him

are and the allegations on which such charges are based,

(b) An opportunity to defend himself by cross examining the witness

produced against him and by examining himself or any other

witnesses to support his defence and finally,

(c) An Opportunity to make his representation as to why the proposed

punishment should be inflicted on him which he can do only if the

competent authority, after the enquiry is over and after applying his

mind to the gravity or other wise of the charges proved against the

Government Servant, tentatively proposes to inflict one of the three

major punishments and communicates the same to the Govt.

Servant. Khem Chand Vs. Union of India (1959 I ILJ 167 175, Air

1958 S.C. 300)

SALIENT FEATURES

The salient features of Natural Justice are summed up as follows:

1. Allegations should be specific and precise and ought to be

produced in writing. The charges framed against the workman on

the basis of allegations should be such as are violative of specific

provisions of the service rules or the notified standing orders

applicable to the establishment.

2. Reasonable time should be given to the delinquent employee to

reply to the charge-sheet and prepare of his defence, if a formal

enquiry is to be conducted.

3. Enquiry officer appointed for conducting domestic enquiry should

be totally un-biased and not connected with the incident. He should

not be allowed to appear as a prosecution witness himself.

4. All prosecution witnesses should be examined individually in the

presence of the delinquent employee and their statements

recorded. Pre-recorded statements should not be brought on the

record of the enquiry proceedings.

5. When a statement of a particular witness is being recorded the

other prosecution witnesses should not be present to hear the

same.

6. The delinquent employee or his Defence Representative should be

given ample opportunity to cross examine the witnesses and the

replies of the witnesses should be recorded by the enquiry officer.

7. The delinquent employee should not be examined as a witness

unless he volunteers himself, as none could be compelled to give

evidence against himself.

8. Delinquent employee should be allowed to take assistance from a

co-employee or a union official of his choice, although, legal

practitioner may not be permitted for this purpose.

9. The delinquent employee should be given reasonable opportunity

to produce and examine defence witnesses.

10. Enquiry officer should base his findings only on the evidence

tendered in the enquiry proceedings. He should not rely upon any

record or document which is not brought to the notice of the

delinquent employee.

11. Ex-parte decisions should not be taken as far as possible unless

the enquiry officer is fully convinced that the delinquent employee

does not want to appear before him or wants to drag on the

proceedings, unnecessarily.

Conclusion

It is to be understood that the ultimate objectives of

departmental/domestic probe is to determine or to draw inference

whether punishment should or should not be awarded to on employee

and so the principles of Natural Justice are applicable to domestic

enquires even though there may not be any rule or provision to

that effect.

The principles of natural justice are easy to proclaim, but their precise

extent is far less easy to define. The rule against bias is one thing. The

right to be heard is another. These two rules are characteristic of what

is often called ‘natural justice’. They are twin pillars supporting it. They

have been put into two words- Impartiality & Fairness.

The Principles of natural justice are considered to be more important to

ensure justice to the workman whose conduct is being enquired into.

Hence, it is essential to understand its scope and extent and

implications for purpose of domestic enquiry. We come across new

cases every day but basic structure about the machinery entrusted with

the task of holding departmental enquiry and coming to a decision,

remains the same. Therefore, the employer should give proper

attention to this aspect of the disciplinary action so that pit falls on this

score could be avoided.