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The Cardinal Doctrine of Audi Alteram Partem

Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning listen to the other side, or let the other side be heard as well.
  • The second fundamental principle of natural justice is Audi alteram partem, i.e. no man should be condemned unheard, or both the sides must be heard before passing any order.
  • This is the basic requirement of rule of law.
  • It has been described as foundational and fundamental concept.
  • It lays down a norm which should be implemented by all courts and tribunals at national as also at the international level.

(i) BALCO Employees' Union v. UOI[1]
  • Audi Altrem Patrem is the second long arm of natural justice which protects the little man from arbitrary administrative actions whenever his right to person or property is jeopardized
  • Thus, one of the objectives of giving a hearing in application of the principles of natural justice is to see that an illegal action or decision does not take place.
  • Any wrong order may adversely affect a person, and it is essentially for this reason that a reasonable opportunity may have to be granted before passing an administrative order.
  • In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him.
  • Generally, this maxim includes the following elements:
A. Notice Right to Notice
  • The term notice originated from the Latin word notitia which means being known. In its popular sense it is equivalent to information, intelligence or knowledge. In legal sense it embraces knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact.
(i) Canara Bank v. Debasis Das[2]
  • Notice embodies rule of fairness and must proceed an adverse order.
  • It should be clear and precise so as to give the party adequate information of the case he has to meet Phil stuff time given should be adequate for a person so that he could prepare an effective defense full stuff denial of notice and an opportunity to respond make an administrative decision completely vitiated.
(ii) BALCO Employees' Union v. UOI[3]
  • The rule of Fair hearing is the basic concept of the principles of natural justice. The Omni potency inherent in the doctrine is that no one should be condemned unheard.
  • In the field of administrative action, this principle has been applied to ensure fair play and justice to affected persons.
  • However, the doctrine is not the cure to all ills and the process. Its application depends upon the factual metrics to improve administrative efficiency, expediency and to mete out justice.
  • The procedure adopted must be just and fair.
     
But generally, a notice in order to be adequate must contain the following:
  1. Time place and nature of hearing
  2. Legal authority under which hearing is to be held
  3. Statement of specific charges which the person has to meet
  4. Particular penalty or action which is proposed to be awarded or taken

(iii) State of U.P. v. Vam Organic Chemicals Ltd.[4]
  • The Supreme Court stressed that before any notices issued, there must exist sufficient reasons for your proposal action for which notice is to be issued.
  • Therefore, reasons are a precondition for issuing the notice, and these must be contained in notice.
  • In this case a person was granted recognition certificate for dealing in certain items. Thereafter, government decided to delete certain items from the certificate.
  • Quoted that sufficient reasons are a precondition before notice is issued and they should form part of the notice.
  • The code further emphasized that even if it is a rectification of a mistake, notice must be given very a person would suffer a serious prejudice. Rectification cannot die vest a vested right.

(iv) Keshav Mills Co. Ltd v. UOI[5]
  • The requirement of notice will not be insisted upon as a mere technical formality when the party concerned clearly knows the case against it, and he's not there by plagiarized in any manner in putting up an effective defense.
  • Therefore in this case the court did not crash the order of the government taking over the mill for a period of five years on the technical ground that their parents were not issued notice before this action was taken, as at an earlier stage a full scale hearing had already been given and there was nothing more which the appellants wanted to know.

Consequences of non-issue of notice:
  1. Non issuance of notice or mistake in the issue of notice, or defective service of notice does not affect the jurisdiction of the authority if, otherwise a reasonable opportunity of being hard has been given.
  2. Issuance of notice as prescribed by law constitutes a part of reasonable opportunity of being heard.
  3. If Richard eyes has been caused by non-issuance or invalid service of notice, the proceedings would be vitiated. But, irregular service of notice would not render the proceedings invalid, more so if the person by his conduct has rendered service impracticable or impossible or is otherwise aware of the proceedings or notice either actually or constructively.
  4. In case of non-issuance of northeast or defective service which violates the principles of natural justice, the administrative authority may decide the case de Novo With proper notice. Violation of the principles of natural justice vitiates Older but not the preceding.
  5. He show-cause notice if contains unspecified, vague or unintelligible allegations would imply a denial of proper opportunity of being heard

B) Hearing
  • The second requirement of Audi alteram partem maxim is that the person concerned must be given an opportunity of being heard before any adverse action is taken against him.
(i) Cooper v. Wandsworth Board of Works[6
  • The defendant Board had power to demolish any building without giving any opportunity of hearing if it was erected without prior permission.
  • The Board demolished the house of the plaintiff under this provision.
  • The action of the Board was not in violation of the statutory provision. The court held that the Board's power was subject to the qualification that no man can be deprived of his property without having an opportunity of being heard.
(ii) Fateh Singh v. State of Rajasthan[7]
  • The reasonable opportunity of hearing which is also well known as 'fair hearing' is an important ingredient of the audi alteram partem rule.
  • This condition may be complied by the authority by providing written or oral hearing which is the discretion of the authority, unless the statue under which the action being taken by the authority provides otherwise.

(iii) Union of India v. J.P. Mitter[8]
  • The rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively and this may also be achieved by providing opportunity to the affected person by making 'written representation' instead of oral or personal hearing

Rights
  1. Right to present case and evidence/ oral hearing
    1. A.K. Roy v. UOI[9]
      • Supreme Court held that if the detenu desires to examine any witnesses, he shall have to keep them present at that point at a time and no obligation can be cast on the Advisory Board to someone them.
      • The board can also limit the time within which the detenu must complete his evidence.

       
  2. Right to rebut adverse evidence
    1. Dhakeshwari cotton Mills Limited v.Commr of Income Tax[10]
      • The court quashed the order of the tax tribunal where the information supplied by the Department against the assesses was not disclosed to him.
      • This does not, however, necessitate the supply of adverse material in original in all cases.
      • It is sufficient if the summary of the contents of the adverse material is made available, provided it is not misleading.

(C) Evidence:
  1. Stafford v. Minister of Health[11]
    • Evidence is an important part which is to be brought properly before the Court in the presence of both the parties and a judicial or quasi-judicial authority must have to act on the evidence produced.
    • Ordinarily, no evidence personal or oral should be received at the back of other party and if any such evidence is recorded, it is duty of the authority that such evidence must be made available to the other party.
     
  2. Keshav Mill Co. v. Union of India[12]
    • The Supreme Court was not ready to lay down an inflexible rule that it was not necessary to show the report of enquiry committee to the affected person.
    • The court made it clear that whether the report of the enquiry committee should be furnished or not depends in every individual case on merits of the case.

(D) Cross Examination:
  • The adjudicating authority in a fair hearing is not required only to disclose the person concerned the evidence or material to be taken against him, but he should be provided an opportunity to rebut the evidence or material.
  • The important question before the authority is that the witness should be cross-examined or not.

(i) Kanungo & Co. v. Collector of Customs
  • The business premises of a person were searched and certain watches were confiscated by the authority under Sea Customs Act.
  • The said person was not allowed to cross-examine the persons who gave information to the authority.
  • There was no violation of the natural justice and the Court held that the principles of natural justice do not require the authority to allow the person concerned the right to cross examine the witnesses in the matters of seizure of goods under the Sea Customs Act.
  • If the person concerned is allowed the right to cross-examine, it is not necessary to follow the procedure laid down in the Indian Evidence Act.

(E) Legal Representation

  • Normally, the representation through a lawyer in the administrative adjudication is not considered as an indispensable part of the fair hearing.
  • But, in certain situations if the right to legal representation is denied, then it amounts to violation of natural justice.
 
  1. M.H. Hoskot v. State of Maharashtra[13]
    • The Supreme Court held that while importing the concept of Fair procedure in Article 21 of the Constitution, held that the right to personal liberty implies provision by the state of free legal service to a prisoner who is indigent or not, held that the right to personal Liberty implies provision by the state of free legal service to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service.
       
  2. Khatri v. State of Bihar[14]
    • The Supreme Court further ruled that state is constitutionally bound to provide legal aid to the poor or indigent accused not only at the stage of trail but at the time of remind also.
    • Such right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it.
    • The Supreme Court emphasized that it is the duty of the presiding officer to inform the accused of such right.

Exceptions To Audi Alteram Partem:
  1. Statutory Exclusion:
    • Natural justice is implied by the Courts when the parent statute under which an action is being taken by the Administration is silent as to its application.
    (i) Maneka Gandhi vs. Union of India[15]
    • Omission to mention the right of hearing in the statutory provision does not ipso facto exclude a hearing to the affected.
       
  2. Legislative Function:
    Mohinder Singh Gill vs. CEC[16]
    • Whether notice and right to be heard must been given or not was been laid down before the SC.
    • In Firozhpur Constituency Parliamentary Election counting was been going on where in some segments counting were going on and in some it was over.
    • One candidate was having a very good lead but before the declaration the very purpose of surveillance and there is every possibility of the ends of justice being defeated instead of being served.
       
  3. Impractibility:
    Bihar School Examination Board vs. Subhash Chandra[17]
    • The Board conducted final tenth standard examination
    • At a particular centre, where there were more than thousand students, it was alleged to have mass copying.
    • Even in evaluation, it was prima-facie found that there was mass copying as most of the answers were same and they received same marks.
    • For this reason, the Board cancelled the exam without giving any opportunity of hearing and ordered for fresh examination, whereby all students were directed to appear for the same.
    • Many of the students approached the Patna HC challenging it on the ground that before cancellation of exam, no opportunity of hearing was been given to the students.
    • The HC struck down the decision of the Board in violation of Audi Alteram Partem.
    • The Board unsatisfied with the decision of the Court approached the SC.
    • The SC rejected the HC judgment and held that in this situation, conducting hearing is impossible as thousand notices have to be issued and everyone must be given an opportunity of hearing, cross-examination, rebuttal, presenting evidences etc. which is not practicable at all.
    • So, the SC held that on the ground of impracticability, hearing can be excluded.
       
  4. Academic Evaluation:
    (i) Jawaharlal Nehru University v. B.S. Narwal[18]
    • A student of JNU was removed from the rolls for unsatisfactory academic performances without being given any pre decisional hearing.
    • The Supreme Court held that the very nature of academic adjudication appears to negative any right of an opportunity to be heard.
    • Therefore, if the competent academic authorities examine and asses the work of a student over a period of time and declare his work unsatisfactory, the rules of natural justice may be excluded.
       
  5. Inter-Disclipinary Action:
    (i) S.A Khan vs. State of Haryana[19]
    • Mr. Khan an IPS Officer holding the post of Deputy Inspector General of Haryana; Haryana Govt., was suspended by the Haryana Government due to various complaints against him.
    • Thus, he approached the Supreme Court on the ground of violation of PNJ as he was not given an opportunity to be heard.
    • The SC held that the suspension being interim-disciplinary action, there is no requirement to afford hearing.
    • It can be ordered without affording an opportunity of hearing.
End-Notes:
  1. 2001 IIIAD Delhi 717
  2. (2000) 2 CALLT 170 HC
  3. (2002) 2 SCC 333
  4. 1998 4 AWC 600
  5. 1973 SCR (3) 22
  6. [1863] 143 ER 414
  7. AIR 1995 Raj 15
  8. 1971 SCR (3) 483
  9. 1982 SCR (2) 272
  10. 1955 SCR (1) 941
  11. [I946] i K.B. 62I
  12. 1973 SCR (3) 22
  13. 1979 SCR (1) 192
  14. 1981 SCR (2) 408
  15. 1978 SCR (2) 621
  16. 1978 SCR (3) 272
  17. 1970 SCR (3) 963
  18. 1981 SCR (1) 618
  19. AIR 1993 SC 1152

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