Date : 9th April, 2020

Lecture No.09

Exceptions To The Rule Of Natural Justice

It is a general rule that every person whose rights are affected by the administrative actions is
entitled to claim natural justice. The Courts have generally read into the provisions of the
relevant sections a requirement of giving a reasonable opportunity of being heard before an
order is made which would have adverse civil consequences for the parties affected as in case
of C.B. Gautam v. Union of India. However, there are certain exceptions to this general rule
where the requirement of 'natural justice' is exc1uded. Such exceptional circumstances are as
follows: -

Exclusion by Statutory Provisions

The principle of natural justice may be excluded by the statutory provisions where the
statute expressly provides for the observance of the principles of natural justice, the
provision is treated as mandatory and the authority is bound by it. Thus, where the statute is
silence as to the observance of the principles of natural justice, such silence is taken to imply
the observance thereto and the Courts read into the provisions of the statute the observance of
principles of natural justice. However, the principles of natural justice are not incapable of
exclusion. These principles supplement law and they do not supplant the law and they may be
excluded by the statute. When the statute expressly or by necessary implication excludes the
application of the principles of natural justice, the Courts do not ignore the mandate of the
legislature or he statutory authority and cannot read into the concerned provisions of the
principles of natural justice as in case of A.K. Kraipak v. Union of India. Whether the
exercise of a power conferred should be made in accordance with any of the principles of
natural justice or not depends upon the express words of the provisions conferring the power,
the nature of power conferred, the purpose for which it is conferred and the effect of the
exercise of that power as in case of Rash Lal Yadav v. State of Bihar and Umrao Singh
Chaudhary v. State of M.P. It is also be noted that statutory provisions excluding the
application of the principle of natural justice must not be violative of the Constitutional
provisions as in case of Gullapalli Nageshwar Rao v. A.P. State Road Transport Corporation.
The exclusion should be based on reasonable ground and should not be arbitrary. If the
exclusion is without any reasonable ground, it would be certainly arbitrary and violative of
Article 14 of Constituion of India as in the case of Delhi Transport Corporation v. D.T.C.
Majdoor Congress where the validity of Regulation 9(b) of the Delhi Road Transport
Authority (conditions of Appointment and Service) regulations were challenged on the
ground that this Regulation empowered the authority to terminate the services of the
permanent and confirmed employee by issuing a notice without assigning any reason in the
order and without giving any opportunity of hearing to the employee before passing the order
for termination of services.

This regulation was held to be wholly arbitrary, uncanalised and unrestricted violating the
principles of natural justice as well as Article 14 of the Constitution. Public Corporation or
Govt. Company being state instrumentation are state within the meaning of Article 12 of the
Constitution and as such they are subject to the observance of the fundamental rights
embodied in Part-III of the Constitution as well as to confirm to the Directive Principle in
Part-IV of the Constitution. The Service Regulations or rules framed by them are to be tested
by the touchstone of Article 14 of the Constitution but the procedure prescribed by their
Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust.
In this case Justice Ray has observed that it is now well settled that audi alteram partem
which in essence enforces the equality clause in Article 14 is applicable not only to the
judicial and quasi judicial orders but also to the administrative order affecting prejudicially
the party in question, when the application of the rules has been expressly excluded by the
Act or Regulation or Rule.

Exclusion by the Constitutional Provisions

The principles of natural justice may be excluded by the express provision of the
Constitution which are implicit in Article 14 & 21 and they are impliedly included therein.
Consequently, express Constitutional provisions excluding the application of the principles of
natural justice will prevail and here Article 311 (2) is notable. Article 311 provides protection
to the civil servants and Article 310 incorporates the doctrine of pleasure developed and
applied in England and the rule is that a civil servant of the Crown holds office during the
pleasure of the Crown and his services can be terminated by the Crown without assigning any
reason at any time and without giving any compensation except where it is otherwise
provided by a statute. The Crown is not bound by the contract of employment between it and
a civil servant. The doctrine of pleasure is based on public policy and its operation can be
modified by an Act of Parliament. Article 310 of the Constitution of India which incorporates
the doctrine of pleasure is subject to Article 311 and the protection of Article 311 is available
to all persons holding a civil post under the Union or a State Govt. including the members an
All India Services. However, the protection of Article 311 is not available to the members of
the Defence services or persons holding a civil post connected with defence outside the
regular civil services.

Article 311 (1)

According to Article 311 (1) no person who is a member of a civil service of the Union or an
All India Service or a Civil Service of a State hold a civil post under the Union or a State
shall be dismissed or removed by an authority subordinate to that by which he has been
appointed.

Article 311 (2)

According to Article 311 (2) no person holding a civil post under the Union or a State
including the members of an All India Service shall be dismissed or removed or reduced in
rank except after an inquiry in which he has been informed of the charges against him and
given a reasonable opportunity of being heard in respect of these charges. The dismissal or
removal or reduction in rank must be by way of punishment which is determined by applying
the test

(a) whether the government servant has right to the post or rank

(b) Whether he has been visited with civil consequences as in the case of

Moti Ram Dcka v. N.E. Frontier Railway.

If either of these two tests is satisfied, the dismissal or removal or reduction in rank will be
by way of punishment so as to attract Article 311 (2) and the dismissal or removal or
reduction in rank without

giving the reasonable opportunity of being heard will be unconstitutional and arbitrary. The
permanent servant has a right to hold the post and, therefore, his removal or dismissal or
reduction in rank without giving him reasonable opportunity to defend will be
unconstitutional as in the above case of Moti Ram Deka v. N.E. Frontier Railway.

However, a temporary govt. servant has no right to hold the post and, therefore, he may be
dismissed or removed from service at any time by giving a reasonable notice. If the order of
termination or reversion or reduction in rank costs stigma on the character or integrity of the
govt. servant, it will be constitute a penal consequence so as to attract Article 311 (2) and
hence, search order is required to be passed after inquiry and giving him reasonable
opportunity to defend.

Second Proviso to Article 311 (2)

Second Proviso to Article 311 (2) create some exceptions to the rule of audi aIteram partem.
According to the proviso the aforesaid provisions of Article 311 (2) are not applicable in the
following conditions-

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct
which has led his conviction on a criminal charge or

(b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is
satisfied that for some reason to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry or

(c) Where the President or Governor as the case may be, satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry. In none of these conditions
there is any need to hold any

inquiry or to provide the servant reasonable opportunity of being heard.

In the case of Tulsi Ram Patel v. Union of India150 the Supreme Court has held that in these
three conditions there is no need to hold an inquiry or to give reasonable opportunity of being
heard or even the service rule cannot confer on the servant the right of hearing in the
aforesaid three conditions because the rule making power under Article 309 is subject to
Article 311 and hence any rule contravening Article 311 would be invalid. In this case the
Supreme Court has made it clear that Article 14 cannot be invoked to imply natural justice in
the three clauses stated above and any action taken against the servant would be taken as
malafide and invalid.

In the case of D.T.C. v. D.T.C. Mazdoor Congress151 the Supreme Court has held that
absence of arbitrariness is the first essential of the rule of law which means that decision
should be made by the application of known principles and rules and such decision should be
predictable and the citizen should know where he is. If a decision is taken without any rule, it
is unpredictable and such a decision is the anti-thesis of a decision taken in accordance with
the rule of law. However, the rule of natural justice i.e. audi alteram partem rule while in
essence and enforces the equality clause in Article 14 is applicable not only to the quasi-
judicial orders but also to the administrative orders affecting prejudicially the party in
question, unless the application of the rule has been expressly excluded by the Act or
Regulation or Rule. The rule of law demands that it has to be observed both substantially and
procedurally.

In an another case of State of Haryana v. Piara Singh, the Supreme has held that in service
matter the Rule of Court is to ensure rule of and to see that the executive acts fairly and gives
fair deals to employee as required under Articles 14 & 16. For example, if a Municipal
corporation is established, the Govt. is not required to hear the residents of the Municipal area
before taking decision for its establishment because the establishment of a Municipal
Corporation is a legislative Act and the rule of natural justice are not applicable to the
legislative Act as in the case of Sundarjas Kanegala Bhatiyja v. Collector, Thane. According
to De Smith, the legislative act is the creation and promulgation of a general rule of conduct
without reference to the particular case. In making the subordinate or delegated legislation
also no hearing is required to be given unless the Enabling Act expressly provides for such
hearing.

Exclusion in case of Legislative Act

The legislative act or function includes making of rules and regulations i.e. the delegated or
subordinate legislation and it is well established that legislative function or legislative act is
not subject to the principles of natural justice. According to Paul Jackson a Minister or any
other body in making legislation is not subject to the rule of natural justice. For example, in
the case of powers derived from the Royal Prerogative, the courts may refuse to interfere on
the ground that the applicant has not been deprived of any legal right as in case of De Freitas
v. Benny the Privy Council held that a Minister could not be required to disclose the evidence
on which he based his advice on the exercise of the Royal Prerogative of Mercy because
"Mercy is not the subject of legal rights. It begins where legal rights end." Lord Denning
M.R. succinctly expressed this judicial attitude in R v. Secretary of State for the Home
Department, ex.p. Hosendall, "The rules of natural justice have to be modified in regard to
foreigners here who themselves unwelcome and ought to be deported."
H.W.R. Wade in his book Administrative Law at page 482 has also stated that there is no to
be heard before the making of legislation, whether primary or deregative unless it is provided
by the statute.

In MRF Ltd. v. Inspector, Kerala Gove158 the court has made it clear that the principle of
natural justice cannot be imported in matter of legislative action. If the legislative, in exercise
of its plenary power under Article 245 of the Constitution, proceeds to act in a law, those who
would be affected by that law cannot legally raise a grievance that before the law was made,
they should have given an opportunity of hearing. Union of India v. Cynamide India Ltd.,
Prag Ice & Oil Mills v. Union of India, C.L. Sahu v. Union of India and J.K. Synthetic Ltd. v.
Municipal Board of Nimbehe are the recent Indian cases where it has been held that
legislative function or act is not subject to the principle of natural justice but if there is a
provision in the statute requiring the observance of the rules of natural justice, the provision
must be complied with and thus in such condition the rules of natural justice would be
required to be observed.

Exclusion in case of Public Interest

The observance of the principles of natural justice may be excluded in case such observance
would cause injury to the public interest as in the case of Union of India v. Tulsi Ram Patel
the Supreme Court made it clear that -

"the rules of natural justice can be avoided if its observance will paralyse the administrative
process. The cases of public interest include the defence of the country and maintenance of
state secret and here the rule of natural justice may be excluded or avoided keeping in view
both of these interests. Thus the authorities are not required to disclose the informations
relating to the defence policy or defence matter because such disclosure may seriously
jeopardize the defence planning of the Govt."

In the case of Union of India v. Tulsi Ram Patel, a permanent auditor in the Regional Audit
Office, was convicted u/s 332 of the Indian Penal Code for causing head injury by iron rod to
his superior officer, R.A.O. He was compulsory retired by the Disciplinary Authority under
Rule 19(1) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965
without holding enquiry and giving opportunity of being heard under Article 311 (2). The
Supreme Court has held the order of compulsory retirement from service was valid under
clause (a) of second proviso to Article 311 (2).
In one group of cases decided along with the case of Tulsi Ram Patel, some members of
C.I.S.F broke down the discipline in the Force and delebrately destroyed the orders of the
Superior. Military was called and there had been exchange of fire between Military and
member of C.I.S.F. for a few hours. Situation was very violent and there was mass terror and
threat to the loyal staff. The respondents who were members of the said C.I.S.F. were
dismissed from service without holding inquiry under clause (b) of the proviso to Article
311(2) and Rule 37(b) of the C.I.S.F. Rules on the ground that it was reasonably practicable
to hold inquiry. The Supreme Court held the order of dismissal of the members of the C.I.S.F.
was valid under clause (b) to the second proviso to Article 311(2).

Similarly in another group of cases decided by the Supreme Court on the same grounds of
Tulsi Ram Patel case, the Railway Employees were dismissed from services under clause (b)
of second proviso to Article 311(2) and Rule 14 of the Railway Servant Rules for
participating in the illegal all India strike of the Railway Employees. The Railway service
was paralysed, loyal workers and superior officers were assaulted and intimated, public
interest and public good were prejudicially affected. There was a. great need for prompt and
immediate action to bring the situation to normal and in these circumstances the inquiry was
not reasonably practicable. Hence the order of dismissal was held valid.

In another group of cases decided along with the case of Tulsi Ram Patel, the members of the
M.P. Distt. Police and M.P. Special Arm Forces stationed at annual Mela at Gwalior induldge
in violent demonstration and rioting, were dismissed from service by the order of Governor
without making inquiry and giving the petitioners a reasonable opportunity of being heard.
The Supreme Court held the order of dismissal was valid on the ground that in these
circumstances prompt and urgent action was required and, therefore, holding of the inquiry
would not have been in the interest of the security of the State.

It is to be noted that public interest is a justiable issue as in case of Maneka Gandhi v. Union
of India164. The determination of the authority that the exclusion of the rule of natural justice
is in public interest and is not final, the Court may examine whether the exclusion is
necessary for the protection of the public interest. The Court can very well determine whether
the exclusion of the principle of natural justice is in public interest or not. In this case, the
Court has also held that in situation where prior hearing is dispensed with on the ground of
public interest, opportunity of personal hearing must be given to the person concerned. If the
public interest demands post decisional hearing, then it must be brought in action and post-
decisional hearing means hearing after the decision or order.

Exclusion in case of Emergency or Necessity

The rule of natural justice may be excluded where prompt action is required to be taken in the
interest of public safety or public morality or public health and in case of prompt action is
required to be taken the pre-decisional hearing may also be excluded. For example where a
person who is dangerous to peace in the society is required to be detained or externed as in
case of Babu Lal v. State of Maharashtra or where a building which is dangerous to the
human lives is required to be demolished as in case of Nathu Bhai v. Municipal Corporation
Bombay. A trade which is dangerous to the society is required to be prohibited and a prompt
action is required to be taken in the interest of public and hearing before the action may delay
the administrative action and thereby cause injury to the public interest and public safety as in
the case of Cooverji v. Excise Commissioner. The administrative determination is thus
subject to the judicial review as in case of Swadeshi Cotton Mill v. Union of India where the
Supreme Court has held that the word “immediate” in Section 18AA of the Industries
Development and Regulation Act does not imply that the rule of natural justice can be
excluded. The audi alteram rule is very flexible and adoptable concept of natural justice
which can be modified to adjust and harmonize to need for special and obligation to act fairly
and thereby the measure of its application may be cut short in reasonable proportion to the
exigencies of the situation.

The doctrine of necessity has been well explained in Halsbury‟s Laws of England where it
has been stated that even if all the members of the Tribunal competent to determine a matter
were subject to disqualification, they might be authorized and obliged to hear that matter by
virtue of the operation of the common law doctrine of necessity which has been recognized
and applied by the Supreme Court of India in Charan Lal Sahu v. Union of India and in case
of Tata Cellular v. Union of India, where the Supreme Court held that the acceptance of the
tender of the company in which his son was employee could not be initiated merely because
the said officer was a member of the Tender Evaluation Committee who was not a decision-
maker at all and his involvement was necessary in view of Sec. 3(6) of the Telegraph Act.
Thus, the Court held that the acceptance of the tender could not be declared invalid on the
ground of bias.

Exclusion on the ground of impractibility

Where the authority deals with a large number of persons it is not practicable to give all of
them opportunity of being heard and therefore, in such condition the Court does not insist on
the observance of the rules of justice as in case of R.Radhakrishnan v. Osmania University
where the entire M.B.A. Entrance Examination was cancelled on the ground of mass copying
and the Court held that it was not possible to give all the examinees the opportunity of being
heard before the cancellation of the examination. Similarly in another case of Bihar School
Examination Board v. Subhash Chandra172 the examination of all subject at one centre was
cancelled on the ground of mass copying and the examinees were allowed to reappear at a
supplementary examination. The Supreme Court held that the number of examinees was very
large and it was impracticable to give all of them opportunity of being heard before passing
the order.

Exclusion in case of Confidentiality

Some times the rule of natural justice is excluded in case of confidentiality as in case of
Malak Singh v. State of Punjab where the Surveillance Register maintain by the police is a
secret and confidential document and no one can claim access to it despite his name has been
entered in the registrar. The observance of the rule of natural justice in such a case would
defeat the purpose of surveillance and there is every possibility of the end of justice being
defeated instead of being served.

Exclusion in case of Academic Adjudication

In the case of Jawahar Lal Nehru University v. B.S. Narwal the Supreme Court has held that
the very nature of academic adjudication appears to negative any right of hearing where a
student of the university was removed from the Roll on the ground of unsatisfactory
academic performance without giving him any opportunity of hearing. The Supreme Court
has made it clear that if the competent academic authority assess the work of a student over a
period of time and thereafter declare his work unsatisfactory the rule of natural justice may be
excluded and it is to be noted here that this exclusion does not apply in case of disciplinary
matters.

Exclusion when no right of the person is infringed

In case where the right of a person is not prejudicially affected, the application of the rules of
natural justice is not attractive as in case of J.R. Vohra v. Indian Export House Ltd. where
under the Delhi Rent
Control Act limited tenancy can be created and it can be terminated on the expiry of its term.
If the term of the limited tenancy is expired and warrant of position is issued to the tenant
without any notice of hearing to him, the warrant of position cannot be held to be invalid on
the ground that no hearing has been given to the tenant before the issue of the said warrant
and by the issue of the said warrant no right has been violated and as a result the application
of the rules of natural justice is not attracted.

Exclusion in the case of interim preventive action

The rules of natural justice is not attracted in the case of interim preventive order. For
example in a case of Abhay Kumar v. K.Srinivasan an order was passed by the College
Authority debarring the student from entering the premises of the college and attending the
classes till the pendency of a criminal case against him for stabbing a student and the Court
held that the order was interim and not final and it was passed with the object of maintaining
peace in the campus being preventive in nature and the rules of natural justice were not
applicable in the case of such order.

Exclusion in case of fraud

The rules of natural justice are not applicable and excluded in case of fraud as in case of U.P.
Junior Doctors Action Committee v. Dr. B.Sheetal Nandwani where the admission obtained
by fraud was cancelled without providing opportunity of hearing to the affecting candidates
and the Supreme Court held that the circumstances in which such benefit has been taken by
the candidates concerned do not justify the attraction of the application of the rule of natural
justice and, therefore, the cancellation of the admission could not be challenged on the
ground of not providing the opportunity of hearing to the affected candidates before passing
the order of cancellation of admission. The Supreme Court in this case made it quite clear
that opportunity of hearing is not necessary before passing the order of canceling the
admission of the candidates when such admission has been secured by fraud.

Effect of Breach of Natural .Justice

When the Authority is required to observe the principle of natural justice in passing an order
but fails to do so, the general judicial opinion is that the order is void. For example in case of
Ridge v. Baldwin in England the Court held the decision of the authority void on the ground
of the breach of rule of fair hearing. However, in case of Durayappah v. Fernando, the order
passed without observing the principle of natural justice was held to be voidable and not void
and the decision in this case has been much criticised. Griffith and Street have expressed the
view that the failure to give a hearing renders a decision void and not merely voidable and the
contrary decision in Durayappah case cannot be regarded as a good English Law.

In India, the position is well settled and the order passed in violation of the principles of
natural justice is void as in the cases of Nawab Khan v. State of Gujrat, State of U.P. v.
Mohd. Noor, A.K. Kraipaipak v. Union of India and Collector of Monghyr v. Keshav Pd.

When the reasons for the decision are not given to the person concerned or reasons are not
given to the Court, the order is quashed and the authority is directed by the Court to examine
the matter afresh as in case of Bhagat Raja v. Union of India185 and in case of Travancore
Rayons v. Union of India. When the reasons are not communicated to the person concerned
that they are on record and in some cases as in Ahmedabad Municipality v. Raman Lal and in
I.M.A. Industries v. Union of India, the court has upheld the action but in some other cases as
in Ajantha Industries v. Central Board of Direct Taxes the court has not upheld it because the
court has held that recording of reasons on the file is not sufficient and it is necessary to give
reasons to the affected person and in this case the order was quashed on the ground that the
reasons were not communicated to the person concerned. The view expressed in this case
appears to be the better view and reasons are always to the benefit of the party concerned and
they should be communicated to the person concerned and they should not be confined to the
record or file.

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