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Post Decisional Hearing

Natural Justice is the underlying soul of impartial and unbiased court rulings. The fundamental rule governing the principle of Natural Justice is Audi Alteram Partem; 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 the party.

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.[1] 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 institution.

The Apex Court has stated that the principles of Natural Justice are not rigid, immutable, but are flexible in nature.[2] 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.[3] 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. [4]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.[5] 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.[6]

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.[7] With the introduction of this concept, the prospect of Principle of Natural Justice has widened.

The 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.[8] 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.[9]

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 India[10]. 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 convenience.

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[11], 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[12] 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.

The court 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[13], 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 for speed” which justifies post-decisional hearing at a later stage.

In emergent 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.

Conclusion:
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.

Considering this 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.

End-Notes:
  1. Union of India v. J.N. Sinha 1971 SCR (1) 791
  2. K.L. Tripathi v. State Bank of India, AIR 1984 SC 273
  3. Mineral Development v. State of Bihar AIR 1960 SC 468
  4. Swadeshi Cotton Mill v. Union Of India, 1981 AIR 818
  5. I.P.Massey, Administrative Law, (6 th edition 2005)
  6. M P Jain & S C Jain, Principles of Administrative Law ( 5 th edition, 2007).
  7. Yoginath D. Bagde v. State of Maharashtra, (1997) 7 SCC 739.
  8. Canara Bank vs V.K. Awasthy on 31 March, 2005
  9. State Bank Of Patiala & Ors vs S.K.Sharma, 1996 AIR 1669
  10. 1978 SCR (2) 621
  11. 1981 SCR (2) 533
  12. (1987) 4 SCC 431
  13. (1989) 1 SCC 764.

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