Departmental Enquiries and the Rules of Natural Justice

Anil K Bansal describes the rules of natural justice as a hedge serving against blatant discrimination of the rights of individuals

The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which means principles of natural law, justice, equity, and good conscience. These principles did not originate from any divine power, but are the outcome of the necessity of judicial thinking, as well as the necessity to evolve the norms of fair play.

These are the principles which every disciplinary authority should follow while taking any decision, which may adversely affect the rights of individuals. It is to be seen that rules of natural justice are not codified anywhere; they are procedural in nature and their aim is to ensure delivery of justice to the parties.

Adherence to rules of natural justice, as recognised by all civilised States, is of supreme importance, when a quasi-judicial body embarks on determining disputes between the parties or any administrative or disciplinary action is in question. Rules of natural justice serve as hedge against any blatant discrimination against rights of individuals. These rules are intended to prevent such authority from doing injustice. They seem to be recognised by Article 21 of the Constitution of India in a way which says, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. This is that procedure which is held by the courts to be the rules of natural justice.

With the evolution of society, as well as legal jurisprudence, the concept of natural justice has also undergone change. Rules of natural justice are not rules embodied in any statute. These rules were part of the law and procedure during the British Raj also, and are being observed in India since time immemorial. These rules have become a part and parcel of the law, as well as procedure. These may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be applied depends on the facts and circumstances of each case. With the passage of time, the old distinction between a judicial act and an administrative act has withered away. Orders of the disciplinary authority, which involve civil consequence, must be consistent with the rules of natural justice, otherwise the orders are likely to be set aside by the courts.

Over the years, two rules have evolved as representing the rules of natural justice in judicial, quasi-judicial and administrative processes. The first rule is ‘nemo debet esse judex in propria causa’, which means that no man shall be judge in his own cause. The second principle is ‘audi alteram partem’, which means that no one should be condemned unheard.

It is of importance to note that proceedings before the civil court are governed by the Code of Civil Procedure; criminal proceedings are governed by the Criminal Procedure Code, but in respect of departmental enquiries, no detailed guidelines have been codified. So, in the absence of any codified law, proceedings under departmental enquiries are mainly governed by the principles of natural justice. However, principles of natural justice are subservient to statutory provisions. They are not the rule of law that can override the codified laws of the land. In the case of A.K. Kraipak Vs. Union of India (AIR 1970 SC 150), the Supreme Court said that the aim of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made, in other words, they do not supplant law, but supplement it.

The nature of the rules of natural justice is flexible. They tend to change with the exigencies of time, and circumstances of each case. Due to their flexible nature, they may seem to be vague or uncertain, but they have been very well adopted by the Indian legal system. Their aim is to prevent arbitrariness, as well as miscarriage of justice.

Of course, they are not enforceable as fundamental rights, but nevertheless, they ensure a strong safeguard against any arbitrary action that may adversely affect the rights of individuals. These have been laid down by the courts as being the minimum protection to rights of individuals against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority, while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. In the past, there were only two rules forming the rules of natural justice; with the course of time, many more subsidiary rules came up to be added to them. These principles are now well settled and can be summarised as under:
(i)    That every person whose civil rights are affected, must have a reasonable notice of the case he has to meet
(ii) That he must have reasonable opportunity of being heard in his defence
(iii)  That the hearing must be by an impartial tribunal
(iv)  That the authority must act in good faith and not arbitrarily  
(v)   The order should be a speaking order

Audi alteram partem
Departmental enquiries relating to the misconduct of individuals should conform to certain standards. One of the standards is that the person concerned must be given a fair and reasonable opportunity to defend himself. It means that no man should be condemned unheard and he has right to know the accusations levelled against him. He has also the right to know the premise on which such accusation is based, and a reasonable opportunity to adduce all relevant evidence in his defence.  In many statutes, provisions are made ensuring that a notice is given to the person against whom an order is likely to be passed before a decision is taken, but some statutes may not contain such provisions. It is here that the rules of natural justice come to play their role. They operate in those areas which are not covered by any law. These principles thus supplement the law and prevent the occurrence of injustice.

In the case of Nagar Palika, Nataur Vs. U.P. Public Services Tribunal, Lucknow, 1998 SCC (L&S)567, despite reminders, the employee neither submitted reply to the charge sheet, nor appeared before the enquiry officer, and neither did he inspect the records, in spite of the opportunity given to him. In such cases, the findings of the enquiry officer on the basis of the available records that the charges were proved, was held not violative of the rules of natural justice. 

In the case of Ajit K Nag Vs. General Manager, Indian Oil Corporation (2005) 7 SCC 764, it was held that non-observance of principles of natural justice vitiates the order, only when some real prejudice is caused to the complainant by such omission. The said principles are now applied, having regard to the facts and circumstances in each case. Where the enquiry officer found one of the charges not proved, but without issuing a show cause notice, the disciplinary authority found even that charge to be proved, it was held that the rules of natural justice were definitely violated causing prejudice to the delinquent.

In the case of Syndicate Bank Vs. Venkatesh Gururao Kurati  2006(2) SCALE 101, it was held by the Supreme Court that non-supply of documents on which the enquiry officer does not rely during the course of enquiry, does not create any prejudice to the delinquent officer, so there is no violation of the rules of natural justice. In the case of Chatterji Vs. Durgadutt, 23 Cal LJ 436, it was held that the law never acts by stealth; it never condemns any one unheard, so that a personal judgment rendered against a party without notice or an appearance by him, is vitiated by the same infirmity as a judgment without jurisdiction.

Nemo debet esse judex in propria causa
The maxim means that no person can be a judge in his own cause. The fundamental rule of natural justice in departmental proceedings is that the disciplinary authority should be impartial and free from bias. It must not be interested in or related with the cause which is being decided by him. The personal interest can be in the shape of some pecuniary benefit or some personal relation or even ill-will or malice or any official bias against any of the parties. The real test is whether a man of ordinary prudence would have a feeling of bias. This follows from the principle that justice should not only be done, but should manifestly seem to be done. In an important case of Mukhtar Singh Vs. State AIR 1957 ALL 297, it was held that the hearing must be by an impartial tribunal, i.e. by a person who is neither directly nor indirectly interested in the case. One who has any interest in the litigation is already biased against the party concerned and the findings of such authority are liable to be struck down.

In the industrial dispute cases, the question of bonafides or mala fides of the employer carries importance. If it is shown that an employer was actuated by a desire to victimise a workman, that may in some cases introduce an infirmity in the order of the disciplinary authority. This is another reason why the enquiry in industrial matters should be held with scrupulous regard to the rules of natural justice. It should be noted that the enquiry officer cannot be the person who is himself a complainant or is related to any of the witnesses or the concerned employee, or has ill-will or malice against any of the person concerned.

In the case of Anandram Vaswani Vs. Union of India (1983)2 LLN 510, it was observed by the court that in the domestic enquiries, the enquiry officer, as well as the witnesses, were from the same establishment, which was sufficient to raise serious apprehension in the mind of the charge sheeted employee. If some sort of legal help may be provided to the employee, the balance which is tilted in favour of the management, may tilt partially towards the delinquent. The court further observed that the justice should not only be done, but should appear to be done, and this is not a euphemism for courts alone, it applied with equal vigour to all those who were responsible for fair play.

Reasoned order
It would be observed that about three or four decades ago, it was not required that the administrative order or the order of disciplinary authority must be supported with reasons. It was held by the Supreme Court in the case of Som Dutt Vs. Union Of India, AIR 1969 SC 414 that there is no rule of natural justice that a statutory tribunal should always and in every case give reason in support of the decision.

With the evolution of natural justice, a new dimension of reasoned order has been added to these rules. There is a feeling among legal luminaries that the requirement of providing reasons for any decision gives an assurance that the evidence relating to the case has been duly considered by the authority. The findings should also be supported by reasons because: it facilitates judicial review of findings of the enquiry officer; findings offer assurance to the parties that the decision is the outcome of rationality based on evidence as well as the records of the case; and it ensures against arbitrary or hasty action on the part of deciding authority.   

Due to these developments in the legal jurisprudence, now it is being held by the courts that the order passed by an enquiry officer or administrative agency must be a speaking order. If the order is not supported by reasons, it will amount to violation of the rules of natural justice. If the order is passed with reasons, only then will it show that there was proper appreciation of evidence by the disciplinary authority, otherwise the aggrieved party will not be in a position to demonstrate before the appellate authority, as to the manner in which the order passed by the initial authority is bad or suffers from a particular illegality. It does not mean that the order must be a lengthy one, and must deal with all minute details like the order of a judicial court. It must at least show that there was proper appreciation of evidence and application of mind before passing it. In the case of Anjali Vs. SBI 1993 (2) Bank CLR 372, termination from bank service was based on findings which were founded on pure suspicion, and surmises without subscribing, any reason. On appeal, it was held that the order was not a speaking order, with no application of mind to the points raised by the employee. Hence, termination from service was quashed, as the principles of natural justice were violated.

This rule of natural justice of ‘speaking order’ is a comparatively new dimension added to the principles and now emphasis is placed on giving reasons in the findings. The concept of social security, length of service of the employee, nature of charges, gravity of charges, status in life, family circumstances etc are now being given greater importance by the courts. However, the courts have repeatedly held that no two cases can be equal; each case is to be decided according to its merits and circumstances.
With the insertion of Section 11-A in the Industrial Disputes Act, 1947, a step has been taken to give more social security to employees, as Tribunals and Labour Courts have been invested with powers of going into the question of ‘quantum of punishment’. This will prove to be a check on the disciplinary authority while passing any order. In the case of Mohini Vs. General Manager, Syndicate Bank 2 Bank CLR 629, it was held that remedy under the Industrial Disputes Act is comprehensive than Article 226 of the Constitution. Labour Courts have wide powers to examine the validity of enquiry, quantum of punishment and merits of the charges, and to give independent findings. With the insertion of section 11-A, Industrial Disputes Act, 1947, greater amount of social security has been provided to employees, and the labour courts can definitely review the quantum of punishment. After the inclusion of section 11-A, the past record of an employee is held to be relevant for deciding the quantum of punishment.

It would be seen that the rules of natural justice are flexible, and cannot be weighed in golden scales, nor can it be put in any straight-jacket. It depends on the extent to which the rights of an individual are affected. The role of these rules is to ensure justice to both the parties. Their contravention cannot be presumed, unless it can be shown that injustice has actually been done. In certain matters, only representation may be sufficient, while in others, full-fledged hearing and cross-examination may be necessary. What the courts have to examine is that whether non-observance of any of the rules is likely to prejudice any of the parties.

Anil K Bansal is the Chief Manager, Legal, Central Bank of India’s Mumbai Metro Zonal Office. Prior to this, he worked in Punjab National Bank as Law Officer, before which he practiced as an advocate for about five years.