Natural Justice is the underlying soul of impartial and unbiased court rulings.
The fundamental rule governing the principle of Natural Justice is Audi Alteram
it embodies the concept that no one should be condemned unheard. Right
to be heard is an essential and imperative element of Principle of Natural
Justice. The jurisprudence behind this principle is that a person who is accused
or whose right and interest are being affected or against whom adverse action
are being initiated by an authority must be given an opportunity to defend and
present his views on those matters, rather deciding the issue without hearing
A fair hearing is the duty of the administration; it is a right that
every civilized society must provide it to their citizens, though right to be
heard is not a fundamental right. Fair play is a part of the public policy
and is a guarantee for justice to citizens. In our system of Rule of Law every
social agency conferred with power is required to act fairly so that social
action would be just and there would be furtherance of the well-being of
citizens. The norms pertinent to fair hearing differs from institution to
The Apex Court has stated that the principles of Natural Justice
are not rigid, immutable, but are flexible in nature. The Supreme Court has
been comprehensively able to appreciate the concept of fair hearing as an
elastic one and is not susceptible of easy and precise definition. At every
stage of administrative adjudication, the principle of Audi Alteram Partem must
be followed. Audi alteram partem is a highly effective rule devised by the
Courts to ensure that a statutory authority arrives at a just decision and it is
calculated to act as a healthy check on the abuse or misuse of power. Its
reach should not be narrowed and its applicability circumscribed.
Concept of Post Decision Hearing:
The idea of Post Decision Hearing has been developed to maintain a balance
between administrative efficiency and fairness to individuals. In Post
Decisional Hearing, an individual is given an opportunity to be heard after a
tentative decision has been taken by the authorities. In certain situations, it
is not feasible for the authorities to have a normal pre-decisional hearing and
decisions are being taken on first instance before providing the individual to
present his views, than it would be consider reasonable if the authorities
provide Post Decision Hearing as well as it will be in compliance with the
Principle of Natural Justice. In Post Decision Hearing, the prominent point is
that authorities must take only a tentative decision and not a final decision
without hearing the party concerned.
The fundamental objective is that when a
final decision is taken than it becomes difficult for the authorities to reverse
it and the purpose of providing a fair hearing gets defeated, therefore, for an
accused it turns out to be a less effective than pre decision hearing. The
similar proposition was ingeminated by the Apex Court. With the introduction
of this concept, the prospect of Principle of Natural Justice has widened.
Supreme Court has been emphatic and prefers for Pre Decision Hearing rather Post
Decision Hearing which must be done only in extreme and unavoidable cases. It
strengthens the concept of Audi Alteram Partem by providing Right to Heard at a
later stage. The Supreme Court has different views on Post Decision Hearing,
on whether providing opportunity to be heard at a later stage sub serves the
Principle of Natural Justice or not, or can post decision hearing be an absolute
substitute for pre decision hearing.
Why the post decisional hearing was propounded?
The idea of post-decisional hearing has been developed to maintain a balance
between administrative efficiency and fairness to the individual. This
harmonizing tool was developed by the Supreme Court in Maneka Gandhi V. Union of
. In this case the passport of the petitioner was impounded in the
public interest by an order and the government having declined to furnish her
the reasons for its decision she filed a petition before the Supreme Court under
Art. 32 challenging the validity of the impounded order. The government also did
not give her any pre-decisional notice and hearing.
One of the contentions of
the government was that the rule of audi alteram partem must be held to be
excluded because it may have frustrated the very purpose of impounding the
passport. Rejecting the contention the court rightly held that though the
impoundment of the passport was an administrative action yet the rule of fair
hearing is attracted by necessary implication and it would not be fair to
exclude the application of this cardinal rule on the ground of administrative
The concept of post-decisional hearing in situations where pre-decisional
hearing is required either expressly or by necessary implication is itself based
on wrong hypothesis that administrative efficiency and fairness to the
individual are discreet values. One cannot expect that a post-decisional hearing
would be anything more than a mere empty formalistic ritual.
Post-decisional hearing mechanism may be resorted to only when pre-decisional
hearing may not be possible and the only choice may be to have either no hearing
or a post-decisional hearing.
In Swadeshi Cotton Mills. V. Union of India
, the Court validated the order
which had been passed in violation of the audi alteram partem rule and which was
found to have been attracted by necessary implication because the government had
agreed to give post-decisional hearing.
Besides this K.I. Shephard V. Union of India
 also reflects the thoughts
process of the Highest Bench on this important issue. In this case in terms of
the scheme of the Banking Regulation Act three erstwhile banks had been
amalgamated. Pursuant to the scheme, certain employees of the amalgamated banks
were excluded from employment and their services were not taken over. Some
excluded employees filed writs before the High Court under Art. 226 for relief.
The Single Judge granted partial relief by proposing post-decisional hearing. On
appeal the Division Bench dismissed the writ petitions. Some of the excluded
employees then filed writ petitions directly before the Supreme Court. Allowing
the writs the court held that post-decisional hearing in this case would not do
justice especially where the normal rule of fair hearing should apply.
pointed out that there is no justification to throw a person out of employment
and then give him an opportunity as a condition precedent to action. The Court
observed that it is a common experience that once a decision is taken there is a
tendency to uphold it and the representation may not yield any fruitful result.
Therefore, even in cases of emergent situations pre-decisional hearing is
necessary which may not be an elaborate one.
In H.L. Trehan V. Union of India
, a government company, on acquiring shares
of some private petroleum companies also acquired their staff. But under the
relevant law, Government Co. could duly alter the remuneration and conditions of
service of these employees. Accordingly, it issued a circular reducing their
perquisites and allowances. The legality of the circular was challenged by some
of the employees on the ground that it substantially altered their terms of
service to their prejudice and that they had not been given a hearing before
issuing the impugned circular.
The Supreme Court observed that:
In our opinion, the post-decisional opportunity
of hearing does not sub serve 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 a proper consideration of the
representation at such a post-decisional opportunity.
Thus in every case where
the pre-decisional hearing is warranted post-decisional hearing will not
validate the action except in very exceptional circumstances.
A prior hearing may be better than a subsequent hearing but a subsequent hearing
is better than no hearing at all. The approach may be acceptable where the
original decision does not cause serious detriment to the person affected, or
where there is also a paramount need for prompt action, where it is
impracticable to afford antecedent hearings. In substance it is the necessity
which justifies post-decisional hearing at a later stage.
situations the principles of natural justice are excluded and therefore if the
court comes to the conclusion that in a given situation these rules are
applicable there seems to be no reason why their observance should not be
insisted upon at the pre-decisional stage. The law now clearly is that in all
normal cases, pre-decisional hearing is necessary, but in very exceptional
cases, the post-decisional hearing will validate the action if no pre-decisional
hearing is given.
Post decisional hearing as a concept, though indirectlydisregarded by the
Supreme Court, has stood the test of time and is here to stay. Though it might
appear to be blatant violation of Audit Alteram Partem
and Principles of Natural
Justice, when delved into it comes out to be as a furtherance of these
established legal principles.
Not only does the concept of Post Decisional
Hearing flexibly furthers principles of natural justice but it helps its age old
jurisprudence to survive the test of time and makes it a very dynamic concept,
equipped with flexibility and opportunity for further growth.
aspect of it, it is a principle which must not be disregarded and discouraged
but must be used as a useful measure respecting the urgency of the fact
situations. But it must be kept in mind that is should not allowed to run amuck,
as then it might become a bull in china shop and end up subserving the
principles of natural justice altogether. Thus, it must be taken an exceptional
rule which in extreme cases is a useful method to meet the ends of justice,
respecting the urgency of the facts and the legal repercussions which might
result if not acted upon.
- Union of India v. J.N. Sinha 1971 SCR (1) 791
- K.L. Tripathi v. State Bank of India, AIR 1984 SC 273
- Mineral Development v. State of Bihar AIR 1960 SC 468
- Swadeshi Cotton Mill v. Union Of India, 1981 AIR 818
- I.P.Massey, Administrative Law, (6 th edition 2005)
- M P Jain & S C Jain, Principles of Administrative Law ( 5 th edition,
- Yoginath D. Bagde v. State of Maharashtra, (1997) 7 SCC 739.
- Canara Bank vs V.K. Awasthy on 31 March, 2005
- State Bank Of Patiala & Ors vs S.K.Sharma, 1996 AIR 1669
- 1978 SCR (2) 621
- 1981 SCR (2) 533
- (1987) 4 SCC 431
- (1989) 1 SCC 764.
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