TOPIC 4- Rule against bias and PnJ

The issue under consideration is Rule against Bias, which is one of the principles of natural
justice.
Natural justice is an expression of the English common law and involves a procedural
requirement of fairness. It has been defined by Lord Esher MR in Vionet v. Barrett, (1885) as:
"the natural sense of what is right and wrong".
Prof. Wade had defined it as: "The name given to certain fundamental rules which are so
necessary to the proper exercise of power that they are projected from the judicial to the
administrative sphere".
Key Principles related with Principles of Natural Justice
1) Nemo Judex in Causa Sua (Rule against bias)
2) Audi Alteram Partem (Rule of fair hearing)
a) Right to Notice
b) Right to Legal Representation
c) Right to Cross-examination
3) Reasoned Decisions (Speaking Order)
4) Decisions Based on Evidence
5) Right to Appeal
Importance of Principles of Natural Justice
The principles of natural justice are crucial for several reasons:
1) Protecting Individual Rights : They ensure that individuals are treated fairly and justly,
protecting their rights in legal and administrative proceedings.
2) Maintaining Public Confidence: By ensuring fairness and transparency, these principles
help maintain public trust and confidence in the legal and administrative systems.
3) Preventing Abuse of Power: They act as a safeguard against arbitrary and biased decision-
making. preventing misuse of power by authorities.
4) Promoting Justice and Fairness : The principles of natural justice promote overall justice
and fairness in society, ensuring that everyone is treated with respect and dignity.
Nemo judex in Causa Sua( Rule against bias)
1. Rule against bias – It is based on the legal maxim that no one should be a judge in his own
cause.
The term 'bias' means interest - anything which tends to or may be regarded as tending to
cause a person to decide a case otherwise than on evidence.
Thus, it is a pre-conceived notion or pre-determination to decide a case which renders a
judge unable to act impartially. Therefore, this rule makes it clear that the judiciary must be
free from bias and deliver impartial justice.
This principle is based on the following rules
i) No one should be a judge in his own cause
(ii) Justice should not only be done, but manifestly seem to be done.
Test of bias
Types of Bias
1)Actual Bias : This is when there is clear evidence that the decision-maker has a personal
interest or prejudice in the case.
2) Apparent Bias: This occurs when, even without direct evidence of bias, the circumstances
would lead a reasonable person to think that the decision-maker might not be impartial.
3) Judicial Obstinacy : Judicial obstinacy is when a judge firmly sticks to his decision, ignoring
clear evidence or logic that suggests he should change his decision.
Bias can be classified into four broad categories
1. Personal bias
2. Pecuniary bias
3. Subject matter bias
4. Judicial obstinacy
1. Personal bias- It may arise out of professional or personal relationship of some kind e.g..
friend, relative, etc., or hostility between the authority and the parties.
2. Pecuniary bias - It arises from a monetary interest in the subject matter of the case,
irrespective of the quantum of this interest.
3. Subject-matter bias -
(ii) Departmental bias
(iii) Pre-judgement of issues
Departmental bias is also known as official bias or policy bias. It may be alleged in
proceedings before the administrative authority where one of the parties is usually the
authority itself. However, mere involvement would not vitiate the administrative action
unless there is a real likelihood of bias.
4. Judicial obstinacy - implies unreasonable and unwavering persistence by the deciding
officers. It means that if a judgment of a Judge is set aside by a superior court, he must
submit to the same.He cannot rewrite/overrule judgement in the same or in collateral
proceedings, as he too like the parties to the proceedings, is bound by the judgements of the
Higher Courts.

However, there are certain exceptions to the Rule Against Bias as mentioned below -
1. Doctrine of necessity- also known as statutory exception, it means that the rule
against bias will not apply to cases where the person who is deciding the matter is
the only competent authority to take action in that matter. It is imperative to be
allowed in certain cases involving unavoidable situations otherwise it would impede
the course of justice itself and the defaulting party would benefit from it. However
the doctrine of necessity is subject to careful scrutiny to ensure that decisions made
under it are reasonable and justifiable given the circumstances.

2. Waiver- Another exception to the Rule Against Bias is Waiver. In G. Sarna University
of Lucknow, (1976) it was held that if a person had waived his right to challenge a
selection on the ground of bias, he cannot subsequently challenge the same.

Case laws
Case - A.K KRAIPAK V UNION OF INDIA 1970 SC
Fact
In this case, in 1966, the Indian Forest Service was established., and officers serving in
the state forest departments were eligible for selection to this al-India cadre. InJammu
and Kashmir (J&K), the acting Chief Conservator of Forests was both a candidate for
selection and a member of the selection board. When his own name was Considered, he
abstained from participating in the deliberations. However, he actively participated in the
discussions when his rivals names were reviewed and in the process of preparing the
final list of selected candidates in order of preference. His selection to the Indian Forest
Service was subsequently challenged on the grounds that it violated the principles of
natural justice.
Contention of Attorney General on behalf of Respondant
The Attorney General, representing the respondents, contended that the selection
board's powers were administrative, not quasi-judicial, because the board did not have
to decide on any "rights". Furthermore, the final recommendations were made by the
Union Public Service Commission (UPSC), so there was no bias.
Issue
1) Whether Principles of Natural Justice apply to administrative proceedings ?
2) Whether there was any violation of these principles in this case ?
Supreme Court Observation & Decision
Supreme Court found that the selection process violated principles of natural justice
because the candidate's presence on the selection board could bias other members.
The court stated:
1) The rules of Natural justice aim to ensure fairness and prevent injustice, applying to
both judicial and administrative proceedings.
2) The dividing line between an administrative power and a quasi- judicial power is quite
thin and is being gradually obliterated.
3) The rule of law would loose its significance if state agencies do not Conduct their
functions in a fair and just manner.
The court concluded that the rule against bias i.e. " Nemo Judex in Causa Sua" was
violated, emphasizing that impartiality is essential in both judicial and administrative
decisions.
Finally Supreme Court held that the selections were invalid due to a real likelihood of
bias, making it clear that Principles of Natural Justice also apply to administrative
decisions to ensure impartiality and fairness.
case - Ashok Kumar yadav v. State of Haryana 1987 SC
Fact
In this case, the Haryana Public Service Commission selected candidates for Civil
Services. It was alleged that three selected candidates were closely related to two
commission members. Although these two members were absent during the interviews,
the candidates received high marks. This led to claims that the commission was biased
due to these relationships.
Issue
Whether the selection process was biased because the candidates
who were related to commission members received high marks?
Supreme Court Observation and Decision
The court recognized the rule against bias as one of the fundamental features of the
administrative law. However, there are a certain extreme cases in which substitution of
impartial adjudicator is not possible. In such cases, the principle of natural justice must
give way to necessity otherwise the administration of justice will break down. Even
though this doctrine of necessity is not expressly adopted, it is applied on several
occasions. One such instance is the appointment and recruitment process carried out by
a constitutional body like State Public Service Commission. Furthermore, in this case,
there was no arbitrariness in the selection process by the commission. As a result the
selection were not set aside because the court believed it would disturb the
administrative machinery.
case- G.N Nayak v. Goa University 2002
Fact
In this case, the appointment of appellant (as Marine Science professor) was challenged
on various grounds, including bias. The Head of the Department (HOD) of Marine
Science had written a note to the Vice-Chancellor before the interview for the selection
to the post of Professor. In this note, the HOD praised the appellant's qualities and
requested that the selection interview be conducted on a priority basis. The respondent,
who was also an applicant for the same professor position, contended that the selection
process was biased. The respondent claimed that the HOD's prior praise of the appellant
and his presence on the selection committee would unfairly influence the selection
process.
Issue
Was the selection process biased because the HOD, who praised the appellant, was
part of the selection committee ?
Supreme Court Observation & Decision

Supreme Court distinguished between bias and preterence. Bias is a prejudice without
reason or infiuenced by personal interest. However, if a preference is rational and not
driven by personal interest, it does not taint the decision. In the present case, the HOD's
praise was not bias as it was reasonable for him to have an opinion on the abilities of the
staffs working under him. Therefore, his involvement in the selection committee was not
biased.
case - Amar Nath Chowdhuary v. Braithwaite & Co. Ltd.(2002)
Fact
In this case, the appellant was an employee of a government-owned company. The
Chairman-cum-Managing Director of the company, who was also the Disciplinary
Authority, dismissed the appellant from service. The appellant appealed against his
dismissal to the company's Board of Directors. The Managing Director, who had initially
ordered the dismissal, participated in the board's deliberations on the appeal. The
appeal was dismissed, but the appellant contended that the decision was biased because
the Managing Director was involved both in the initial dismissal and in the appeal
process.
issue
1) Whether the participation of the Managing Director in both the disciplinary decision
and the appeal process caused a bias?
2) Whether the company could justify the Managing Director's dual role by invoking
the "doctrine of necessity", which allows a potentially biased person to act if no
alternative decision-maker is available?
Supreme Court Observation & Decision
Supreme Court observed that it is a fundamental rule of natural justice that no person
can be a judge in his own case. The Managing Director's involvement in both the initial
decision and the appeal process violated this rule because it caused a significant risk of
bias.
The Court rejected the company's contention that the doctrine of necessity justified the
Managing Director's dual role. This doctrine is only applicable when no other options are
available, which was not the case here. The Court noted that the Board of Directors
could have formed a committee excluding the Managing Director to handle the appeal.
The company's rules allowed the Board to delegate its powers, so there was no necessity
for the Managing Director to participate in the appeal process.
Due to the Managing Director's participation in both the original decision and the
appeal, Supreme Court held that the board's decision was biased and therefore invalid.
The order of the board was set aside.

Audi alteram partem( Rule of fair hearing)

"Audi alteram partem," means "hear the other side," is a foundational legal principle
that ensures fairness in decision-making processes, particularly in administrative and
judicial proceedings.
Essentially, it mandates that all parties involved in a dispute or legalmatter must be given
the opportunity to present their case and respond to the arguments and evidence put
forth by the opposing party before a decision is reached. Audi alteram partem
guarantees the right to a fair hearing and due process. It encompasses several key
elements:
The following are the ingredients of fair hearing:-
(i) Right to Notice
(i) Right to know the evidence against
(iii) Right to present case and evidence
(iv) Disclosure of all evidence/materials
(v) Right to rebut adverse evidence (cross examination wala likho)
(vi) Right to enquiry report
(vii) Right to hearing
 2) Cross-Examination: Parties should be given the oppotunity to question and challenge
the evidence and testimony presented by the opposing side. Cross-examination is crucial
for testing the credibility and reliability of the evidence. Cross examination is a most
important weapon to elicit and establish truth, the Court do not insist on cross-
examination in administrative adjudication unless the circumstances are such that in
absence of it, the person cannot put up the effective defence. The right to cross-
examination as an ingredient of fair hearing was considered by Supreme Court in Hira
Nath Mishra v. The Principal, Rajendra Medical College, Ranchi, 1973 SC
case- Hira nath mishra V. principal, Rajendra Medical college, 1973 Sc
Fact
In this case, in a medical college, some female students lodged a complaint before the
principal about the misconduct of male students in the girls' hostel. The principal formed
an enquiry committee to investigate the Complaint. The committee recorded the
statements of the female students in the absence of the male students. Based on these
statements, the committee found the male students guilty, and the principal expelled
them from the college.
Contention of male students
The expelled students contended that the enquiry process was unfair. They claimed that
the evidence against them was collected without their knowledge and that they were
not given the chance to cross-examine the witnesses. Additionally, the committee's
report was ot shared with them. They contended that these actions violated the
principles of natural justice, making the expulsion order illegal.
Issue
Whether the principle of natural justice was followed in expulsion of appellant male
students?
Supreme Court Observation and Decision
Supreme Court upheld the enquiry process used by the college. The Court recognized
the sensitive nature of the case and ruled that the denial of the right to cross-examine
the witnesses and the refusal to reveal the complainants' identities did not violate the
principles of natural justice.
The Court emphasized that the application of principles of natural justice is not rigid and
can vary based on the circumstances. In this case, the Court noted that the college
authorities were not in a Condition to ensure the safety of the female students outside
the college grounds. Therefore, conducting the enquiry in a manner that protected the
female students was justifiable and did not breach the principles of natural justice.

3) Right to Legal Representation: The right to legal representation, rooted in the

principle of natural justice, guarantees individuals the opportunity to have legal counsel
 present during legal proceedings. However, there is no inherent common law pertaining
to right to legal representation before a domestic tribunal.
In administrative proceedings, representation through lawyer is not considered
indispensable part of natural justice as oral hearing is not included in the meaning of the fair
hearing. The denial of legal representation is justified on grounds,
(a) lawyers tend to complicate matters, prolong the proceedings and destroy the
essential informality of the proceedings.
(b) this would give edge to rich over the poor who cannot afford good lawyers. But to
what extent legal representation is allowable in administrative proceedings depends on
provisions of the statute.
Case law- J.K. Aggrawal v. Haryana seeds development Corpn. LTD. 1991SC
Fact
In this case, the appellant, a civil servant, faced disciplinary charges that could lead to his
dismissal. During the disciplinary enquiry, the appellant requested to be represented by
a lawyer, which was denied by the Enquiry Authority. According to Rule 7(5) of the
Haryana Civil Services (Punishment and Appeal) Rules, 1952, a person facing serious
charges may be represented by a lawyer with the Enquiry Officer's sanction.
Issue
Is a person charged before a domestic tribunal entitled to be legally represented as a
matter of right?
Supreme Court Observation & Decision
The Supreme Court ruled that the right to legal representation is not an absolute part of
natural justice in all cases. However, in cases involving serious charges affecting a
person's livelihood, Courts favor allowing egal representation. The Court held that under
Rule 7(5) ofthe Haryana Civil Services (Punishment and Appeal) Rules, 1952, the
appellant should have been allowed to be represented by a lawyer. The refusal to permit
this was deemed an improper exercise of discretion, resulting in a failure of natural
justice. Consequently, legal representation was allowed in this case.

Bpcl case- legal representation

Bharat Petroleum Corpn. Ltd. v. Maharashtra General kamgar union 1999
fact-
In this case, there was a disciplinary proceeding against an employee. The employee
wanted representation, and according to the company's rules, they could choose a fellow
employee to represent them. However, the chosen representative was not an employee
of the company but was a member of the Trade Union.
issue
Whether it was acceptable for a non-employee, who was a member of the Trade Union,
to represent an employee in a disciplinary proceeding?
Supreme Court Observation & Decision
Supreme Court looked at the company's rules, which stated that an employee could be
represented by a fellow employee of his choice. However, the Court noted that this rule
did not explicitly allow for representation by someone who is not an employee of the
company.
Therefore, the Court ruled that unless the company's rules specifically allowed it, an
employee could not be represented by someone who was not an employee of the
company.

Pre-decisional and Post-decisional hearings

Pre-decisional and post-decisional hearings are legal processes that occur at different
stages of a proceeding:
1) Pre-decisional hearing : This occurs before a decision is made, typically by a court,
administrative body, or decision-making authority. Its purpose is to allow parties involved
to present their arguments, evidence, and defences, and to address any issues relevant
to the decision. pre-decisional hearings aims to ensure that all parties have a fair
opportunity to be heard and that the decision maker has access to all relevant
information before reaching a conclusion.
2) Post-decisional hearing : This occurs after a decision has been made, allowing parties
to challenge or appeal the decision. Its purpose is to provide an opportunity for parties
to contest the decision, present new evidence, or argue that the decision was made in
error. Post-decisional hearings are crucial for ensuring that decisions are subject to
scrutiny and review, and that individuals have recourse if they believe the decision was
unjust or flawed .
Maneka Gandhi v. Union of India 1978 SC
Fact
In the case, the passport of Smt. Maneka Gandhi was impounded by the passport
authority without any prior notice or chance for her to present her side, citing the public
interest under Section 10(3)(c) of the Passport Act, 1967.
Contention of Maneka Gandhi (in respect of Administrative Law)
Maneka Gandhi contended that she was denied her right to be heard, which is a
violation of the 'audi alteram partem' principle, also known as the right to a fair hearing.
She challenged Section 10(3)(c) of the Passport Act, 1967, on these grounds.
Issue
The main question was about the extent of the 'audi alteram partem' doctrine, or the
right to be heard, in administrative law.
Supreme Court Observation & Decision
The Supreme Court ruled that impounding the passport without giving a pre-decisional
hearing is unfair. Court emphasized that administrative convenience can not justify
ignoring the 'audi alteram partem'rule. However, the Court recognized the possibility of
a "Post- Decisional Hearing". It stated that in urgent situations where immediate action is
necessary, it may not be feasible to provide a prior hearing. Nevertheless, the Court
stressed the importance of providing a full remedial hearing after the initial action. This
post-decisional hearing ensures that affected individuals are given some opportunity to
beheard, even if it is later stage.
Pre-decisional hearing: haring before making any decision.
Post-decisional hearing : hearing after making any decision.

H.L Trehan v. UOI 1989 SC

Fact
In this case, the government issued a circular to take over a company, altering the terms
and conditions of its employees without giving them a chance to be heard beforehand.
The company contended that although no prior opportunity was provided, employees
were given a chance to discuss the changes after the circular was issued, which they
considered a "post-decisional hearing".
Issue
Whether provision of "post-decisional hearing" should be allowed in this case?
Supreme Court Observation and Decision

Supreme Court observed that allowing a post-decisional hearing Would not meet the
principles of natural justice. Court explained that when a decision has already been
made, the authority conducting the hearing is likely to have a closed mind and may not
properly consider any representations made during this post-decisional hearing.
Therefore, the Court quashed the government order and declared invalid.
"A prior hearing is better than a subsequent hearing (Post Decisional Hearing), but a
subsequent hearing is better than no hearing at all. "

KI Shepherd v. Union of India, AIR 1988 SC

Fact
In this case, three banks were amalgamated, and some employees were excluded from
employment without being given an opportunity to be heard beforehand.
issue Whether excluding employees from employment without a pre decisional hearing
violated the principles of natural justice, if post decisional hearing is being provided at
later stage in the present case ?
Supreme Court Observation & Decision
Supreme Court held that a "post-decisional hearing" would not ensure justice, especially
when the normal rule of fair hearing should apply. Supreme Court stated that employees
should have been given the opportunity to be heard before being excluded from
employment, as decisions are often upheld once made at later stage of post decisional
hearing. Therefore, even in urgent situations, a pre-decisional hearing is necessary when
the action has serious Consequences like job loss.
Finally, Supreme Court quashed the government's order for not adhering to these
principles.

Requirement of supplying Enquiry Report and effect of non- supply of such report
Under administrative law, the requirement to supply an enquiry report depends on the
specific procedural rules and regulations governing the administrative process in
question. However, in general, administrative law often mandates that parties involved in
an administrative proceeding have the right to access relevant documents and evidence,
including enquiry reports. Failure to supply it can have significant implications:
1) Violation of Due Process : Non-supply of the enquiry report may be seen as a violation
of the affected party's right to a fair hearing and due process. Without access to the
report, the party may be unable to adequately prepare their case or challenge any
allegations or findings made against them.
2) Grounds for Challenge: The affected party may have grounds to challenge the
administrative decision based on the failure to provide the enquiry report. This could
result in the decision being set aside or remitted for reconsideration.
 3) Appeal or Review : If the administrative decision is challenged through appeal or
judicial review, the non-supply of the enquiry report could form the basis for arguing that
the decision-making process was flawed or unfair.
In simple way, the failure to supply an enquiry report as required by administrative law can
undermine the fairness and legitimacy of the decision-making process, potentially leading to
challenges, appeals, or other legal remedies.
Case law- Managing Director, ECIL, Hyderabad v. B. Karunakar 1993
Fact & Issue
In this case, an employee faced charges and an inquiry officer, appointed by the disciplinary
authority, conducted an investigation. The issue was whether the employee should receive
the inquiry report prepared by inquiry officer before the disciplinary authority makes a
decision on the charges and potential punishment.
Supreme Court Observation & Decision
The Supreme Court held that:
1) If the inquiry officer is not the disciplinary authority, the employee must receive the
report before the disciplinary authority decides on the charges. This ensures the employee
can defend against the charges, as not providing the report violates principles of natural
justice.
2) The requirement to furnish the report applies to all employees, regardless of whether
they work in government or private establishments, except for punishments less severe than
dismissal, removal, or demotion, where service rules apply.
3) if a court or tribunal finds that not providing the report was an issue, it should not
automatically reinstate the employee with back wages
4) The court or tribunal should set aside the punishment only if it finds that the employee's
defense would have been affected by having the report.

Reasoned decision. (Speaking order)

Reasoned Decision
The order which is passed affecting the rights of an individual must be a speaking order or
reasoned order. This is necessary with a view to exclude the possibility of arbitrariness in the
action.
An order which does not provides reason to support it may be passed in an arbitrary and
irresponsible manner. The other aspect of the matter is that the party, against whom an
order is passed, in fair play, must know the reasons of passing the order. It has a right to
know the reason. Reasoned decision gives the parties an opportunity to know why and
under what circumstances the decision was taken. Thus it helps the affected party to
effectively exercise his right of appeal in the higher forum or court. If reasons are not stated
the right to appeal may not be fully effective, that is why the Courts are mainly insisting on
reasoned decision
In India we do not have any statutory administrative law Courts have stated that one bas to
give reasons and dispensing with it is an exception. Where the statute is expressly providing
or where it is silent, then in such cases giving reasons is mandatory in nature because of the
fact that principle of natural justice have to be followed and also due to constitutional
mandates which come under Article 32, Article 226 and Article 136 of the Constitution.
case - S.N Mukherjee v Union of India 1990 SC
Fact
In this case, the appellant a Captain in Army was Court-martialed, found guilty on some
charges, and dismissed from service. The Army Chief confirmed the Court-martial findings
without recording reasons, and the Central Government dismissed the appellant's post-
confirmation petition, The appellant's writ petition was also dismissed by the High Court,
leading him to appeal to the Supreme Court through a Special Leave Petition (SLP).
Issue
1) Is there a legal principle requiring administrative authorities to record reasons for their
decisions?
2) Does this principle apply to orders confirming the findings and sentences of a Court
Martial and post-confirmation proceedings under the Army Act ?
Supreme Court Observation & Decision
Supreme Court observed that the Law Commission's 14" report recommended that
administrative decisions should include reasons.
The Court held that administrative authorities exercising judicial or quasi-judicial functions
must record reasons to enable appellate and Supervisory review by higher Courts ensure
proper consideration, introduce clarity, and minimize arbitrariness to ensure fairness.
However, under Section 162 of the Army Act, reasons are required only when Summary
Court Martial proceedings are set aside or the sentence is reduced, not when findings and
sentences are confirmed.. Therefore, the Confirming Authority is not required to record
reasons when confirming Court Martial findings and sentences, nor during the consideration
of post-confirmation petitions by the Central Government.