Exclusion of Audi alteram partem rule


The principle of audi alteram pattem is a basic concept of principles of natural justice. No one should be condemned without hearing is the essence of justice.

The Courts of law apply this principle to ensure fair play and justice in judicial and quasi-judicial matters. Of late these principles have been extended even to administrative actions also. However, the application of the audi alteram partem rule is not applicable to all eventualities or to cure all ills. Its application is excluded in the interest of administrative efficiency and expedition. sometimes legislation itself excludes the application of the rule. It is difficult to conceive exhaustively all eventualities and circumstances for application or exclusion of the rule.

In A. K. Kraipak v. Union of India, (1970) 1 SCR 457 a Constitution Bench of this Court held these rules operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also, especially when it is not easy to draw the line that demarcates, administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi judicial enquiry. The Bench, however, further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extend on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the Constitution of the Tribunal or the body of persons appointed for that purpose.

In Union of India v. J. N. Sinha, (1971) 1 SCR 791 this Court held that if a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provisions the principles of natural justice. 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 provision conferring power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.

 In Chairman, Board of Mining Examination v. Ramjee, (1977) 2 SCR 904, Krishna Iyer, J. speaking for the Court observed:

“Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of such situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor finatical but should be flexible yet firm in this jurisdiction.”

It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these uncodified rules are often excluded by express provision or by implication. In Union of India v. Tulsiram Patel, (1985) 3 SCC 398 a Constitution Bench of this Court considered the scope and extent of applicability of principles of natural justice to administrative actions. Madon J. summarised the position of law on this point and observed as follows:

“So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi’s case, (1978) 2 SCR 621.”

In the instant cases statutory Regulations do not expressly or by implication apply the rule of audi atteram partem in making the selection. On the other hand the scheme contained under the regulations exclude the applicability of the aforesaid rule by implication. Select list is prepared each year which ordinarily continues to be effective for a year or till the fresh select list is prepared. If during the process of selection a senior officer is proposed to be superseded by virtue of not being included in the select list, and if opportunity is afforded to him to make representation and only thereafter the list is finalised, the process would be cumbersome and time consuming. In this process it will be difficult for the committee to prepare and finalise the select list within a reasonable period of time and the very purpose of preparing the select list would be defeated. Scheme of the Regulations therefore clearly warrants exclusion of principle of audi alteram, partem. No vested legal right of a member of the State Civil Service who after being considered is not included in the select list, is adversely affected. Non-inclusion in the select list does not take away any right of a member of the State Civil Service that may have accrued to him as a Govt. servant, therefore no opportunity is necessary to be afforded to him for making representation against the proposed supersession.

Source: R. S. Dass v. Union of India, (1986) Suppl. SCC 617