REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 471 OF 2009

(Arising out of SLP (Crl.) No.6382 of 2007)

Uma Nath Pandey and Ors. ..Appellants

Versus

State of U.P. and Anr. ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single

Judge of the Allahabad High Court allowing the Revision Petition filed by

respondent no.2. Though various points were urged it is not necessary to go

into those in detail as the revision petition was allowed even without issuing

notice to the present appellants and to the other parties.

3. Learned Single Judge only heard the counsel for respondent No.2 and

passed the impugned order.

4. Learned counsel for respondent No.2 submitted that the High Court

has taken note of the applicable legal position and, therefore there is no

scope for interference.

5. The crucial question that remains to be adjudicated is whether

principles of natural justice have been violated; and if so, to what extent any

prejudice has been caused. It may be noted at this juncture that in some

cases it has been observed that where grant of opportunity in terms of

principles of natural justice do not improve the situation, “useless formality

theory” can be pressed into service.

6. Natural justice is another name for commonsense justice. Rules of

natural justice are not codified canons. But they are principles ingrained into

the conscience of man. Natural justice is the administration of justice in a

commonsense liberal way. Justice is based substantially on natural ideals

and human values. The administration of justice is to be freed from the

narrow and restricted considerations which are usually associated with a

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formulated law involving linguistic technicalities and grammatical niceties.

It is the substance of justice which has to determine its form.

7. The expressions “natural justice” and “legal justice” do not present a

water-tight classification. It is the substance of justice which is to be

secured by both, and whenever legal justice fails to achieve this solemn

purpose, natural justice is called in aid of legal justice. Natural justice

relieves legal justice from unnecessary technicality, grammatical pedantry

or logical prevarication. It supplies the omissions of a formulated law. As

Lord Buckmaster said, no form or procedure should ever be permitted to

exclude the presentation of a litigants’ defence.

8. The adherence to principles of natural justice as recognized by all

civilized States is of supreme importance when a quasi-judicial body

embarks on determining disputes between the parties, or any administrative

action involving civil consequences is in issue. These principles are well

settled. The first and foremost principle is what is commonly known as audi

alteram partem rule. It says that no one should be condemned unheard.

Notice is the first limb of this principle. It must be precise and

unambiguous. It should appraise the party determinatively the case he has to

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meet. Time given for the purpose should be adequate so as to enable him to

make his representation. In the absence of a notice of the kind and such

reasonable opportunity, the order passed becomes wholly vitiated. Thus, it

is but essential that a party should be put on notice of the case before any

adverse order is passed against him. This is one of the most important

principles of natural justice. It is after all an approved rule of fair play. The

concept has gained significance and shades with time. When the historic

document was made at Runnymede in 1215, the first statutory recognition

of this principle found its way into the “Magna Carta”. The classic

exposition of Sir Edward Coke of natural justice requires to “vocate,

interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth

Board of Works [(1863) 143 ER 414], the principle was thus stated:

“Even God did not pass a sentence upon Adam,

before he was called upon to make his defence. “Adam”
says God, “where art thou? hast thou not eaten of the
tree whereof I commanded thee that thou shouldest not
eat”.

9. Since then the principle has been chiselled, honed and refined,

enriching its content. Judicial treatment has added light and luminosity to

the concept, like polishing of a diamond.

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10. Principles of natural justice are those rules which have been laid

down by the Courts as being the minimum protection of the rights of the

individual against the arbitrary procedure that may be adopted by a judicial,

quasi-judicial and administrative authority while making an order affecting

those rights. These rules are intended to prevent such authority from doing

injustice.

11. What is meant by the term ‘principles of natural justice’ is not easy to

determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government

Board (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly

lacking in precision. In General Council of Medical Education &

Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2 All ER 337),

Lord Wright observed that it was not desirable to attempt ‘to force it into

any procusteam bed’ and mentioned that one essential requirement was that

the Tribunal should be impartial and have no personal interest in the

controversy, and further that it should give ‘a full and fair opportunity’ to

every party of being heard.

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12. Lord Wright referred to the leading cases on the subject. The most

important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB

796), where Lord Loreburn, L.C. observed as follows:

“Comparatively recent statutes have extended, if

they have originated, the practice of imposing upon
departments or offices of State the duty of deciding or
determining questions of various kinds. It will, I
suppose usually be of an administrative kind, but
sometimes, it will involve matter of law as well as
matter of fact, or even depend upon matter of law alone.
In such cases, the Board of Education will have to
ascertain the law and also to ascertain the facts. I need
not and that in doing either they must act in good faith
and fairly listen to both sides for that is a duty lying
upon everyone who decides anything. But I do not think
they are bound to treat such a question as though it were
a trial....The Board is in the nature of the arbitral
tribunal, and a Court of law has no jurisdiction to hear
appeals from the determination either upon law or upon
fact. But if the Court is satisfied either that the Board
have not acted judicially in the way I have described, or
have not determined the question which they are
required by the Act to determine, then there is a remedy
by mandamus and certiorari”.

13. Lord Wright also emphasized from the same decision the observation

of the Lord Chancellor that the Board can obtain information in any way

they think best, always giving a fair opportunity to those who are parties to

the controversy for correcting or contradicting any relevant statement

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prejudicial to their view”. To the same effect are the observations of Earl of

Selbourne, LO in Spackman v. Plumstead District Board of Works (1985

(10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor

observed as follows:

“No doubt, in the absence of special provisions as

to how the person who is to decide is to proceed, law
will imply no more than that the substantial
requirements of justice shall not be violated. He is not a
judge in the proper sense of the word; but he must give
the parties an opportunity of being heard before him
and stating their case and their view. He must give
notice when he will proceed with the matter and he
must act honestly and impartially and not under the
dictation of some other person or persons to whom the
authority is not given by law. There must be no
malversation of any kind. There would be no decision
within the meaning of the statute if there were anything
of that sort done contrary to the essence of justice”.

14. Lord Selbourne also added that the essence of justice consisted in

requiring that all parties should have an opportunity of submitting to the

person by whose decision they are to be bound, such considerations as in

their judgment ought to be brought before him. All these cases lay down the

very important rule of natural justice contained in the oft-quoted phrase

‘justice should not only be done, but should be seen to be done’.

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15. Concept of natural justice has undergone a great deal of change in

recent years. Rules of natural justice are not rules embodied always

expressly in a statute or in rules framed thereunder. They may be implied

from the nature of the duty to be performed under a statute. What particular

rule of natural justice should be implied and what its context should be in a

given case must depend to a great extent on the fact and circumstances of

that case, the frame-work of the statute under which the enquiry is held. The

old distinction between a judicial act and an administrative act has withered

away. Even an administrative order which involves civil consequences must

be consistent with the rules of natural justice. Expression ‘civil

consequences’ encompasses infraction of not merely property or personal

rights but of civil liberties, material deprivations, and non-pecuniary

damages. In its wide umbrella comes everything that affects a citizen in his

civil life.

16. Natural justice has been variously defined by different Judges. A few

instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8,

Lord Cranworth defined it as ‘universal justice’. In James Dunber Smith v.

Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P.

Collier, speaking for the judicial committee of Privy council, used the

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phrase ‘the requirements of substantial justice’, while in Arthur John

Specman v. Plumstead District Board of Works (1884-85(10) App.Case

229, 240), Earl of Selbourne, S.C. preferred the phrase ‘the substantial

requirement of justice’. In Vionet v. Barrett (1885(55) LJRD 39, 41), Lord

Esher, MR defined natural justice as ‘the natural sense of what is right and

wrong’. While, however, deciding Hookings v. Smethwick Local Board of

Health (1890(24) QBD 712), Lord Fasher, M.R. instead of using the

definition given earlier by him in Vionet’s case (supra) chose to define

natural justice as ‘fundamental justice’. In Ridge v. Baldwin (1963(1) WB

569, 578), Harman LJ, in the Court of Appeal countered natural justice with

‘fair-play in action’ a phrase favoured by Bhagawati, J. in Maneka Gandhi

v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967(2)

B617, 530), Lord Parker, CJ, preferred to describe natural justice as ‘a duty

to act fairly’. In fairmount Investments Ltd. v. Secretary to State for

Environment (1976 WLR 1255) Lord Russell of Willowan somewhat

picturesquely described natural justice as ‘a fair crack of the whip’ while

Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex

Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase ‘common

fairness’.

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17. How then have the principles of natural justice been interpreted in the

Courts and within what limits are they to be confined? Over the years by a

process of judicial interpretation two rules have been evolved as

representing the principles of natural justice in judicial process, including

therein quasi-judicial and administrative process. They constitute the basic

elements of a fair hearing, having their roots in the innate sense of man for

fair-play and justice which is not the preserve of any particular race or

country but is shared in common by all men. The first rule is ‘nemo judex in

causa sua’ or ‘nemo debet esse judex in propria causa sua’ as stated in

(1605) 12 Co.Rep.114 that is, ‘no man shall be a judge in his own cause’.

Coke used the form ‘aliquis non debet esse judex in propria causa quia non

potest esse judex at pars’ (Co.Litt. 1418), that is, ‘no man ought to be a

judge in his own case, because he cannot act as Judge and at the same time

be a party’. The form ‘nemo potest esse simul actor et judex’, that is, ‘no

one can be at once suitor and judge’ is also at times used. The second rule

is ‘audi alteram partem’, that is, ‘hear the other side’. At times and

particularly in continental countries, the form ‘audietur at altera pars’ is

used, meaning very much the same thing. A corollary has been deduced

from the above two rules and particularly the audi alteram partem rule,

namely ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit,

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haud acquum facerit’ that is, ‘he who shall decide anything without the

other side having been heard, although he may have said what is right, will

not have been what is right’ (See Bosewell’s case (1605) 6 Co.Rep. 48-b,

52-a) or in other words, as it is now expressed, ‘justice should not only be

done but should manifestly be seen to be done’. Whenever an order is struck

down as invalid being in violation of principles of natural justice, there is no

final decision of the case and fresh proceedings are left upon. All that is

done is to vacate the order assailed by virtue of its inherent defect, but the

proceedings are not terminated.

18. What is known as ‘useless formality theory’ has received

consideration of this Court in M.C. Mehta v. Union of India (1999(6) SCC

237). It was observed as under:

“Before we go into the final aspect of this

contention, we would like to state that case relating to
breach of natural justice do also occur where all facts
are not admitted or are not all beyond dispute. In the
context of those cases there is a considerable case-law
and literature as to whether relief can be refused even if
the court thinks that the case of the applicant is not one
of ‘real substance’ or that there is no substantial
possibility of his success or that the result will not be
different, even if natural justice is followed (See
Malloch v. Aberdeen Corpn: (1971)2 All ER 1278, HL)
(per Lord Reid and Lord Wilberforce), Glynn v. Keele

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University: (1971) 2 All ER 89; Cinnamond v. British
Airports Authority: (1980) 2 All ER 368, CA) and other
cases where such a view has been held. The latest
addition to this view is R v. Ealing Magistrates’ Court,
ex p. Fannaran (1996 (8) Admn. LR 351, 358) (See de
Smith, Suppl. P.89 (1998) where Straughton, L.J. held
that there must be ‘demonstrable beyond doubt’ that the
result would have been different. Lord Woolf in Lloyd
v. McMohan (1987 (1) All ER 1118, CA) has also not
disfavoured refusal of discretion in certain cases of
breach of natural justice. The New Zealand Court in
McCarthy v. Grant (1959 NZLR 1014) however goes
halfway when it says that (as in the case of bias), it is
sufficient for the applicant to show that there is ‘real
likelihood-not certainty- of prejudice’. On the other
hand, Garner Administrative Law (8th Edn. 1996.
pp.271-72) says that slight proof that the result would
have been different is sufficient. On the other side of
the argument, we have apart from Ridge v. Baldwin
(1964 AC 40: (1963) 2 All ER 66, HL), Megarry, J. in
John v. Rees ( 1969 (2) All ER 274) stating that there
are always ‘open and shut cases’ and no absolute rule
of proof of prejudice can be laid down. Merits are not
for the court but for the authority to consider. Ackner, J
has said that the ‘useless formality theory’ is a
dangerous one and, however inconvenient, natural
justice must be followed. His Lordship observed that
‘convenience and justice are often not on speaking
terms’. More recently, Lord Bingham has deprecated
the ‘useless formality theory’ in R. v. Chief Constable
of the Thames Valley Police Forces, ex p. Cotton (1990
IRLR 344) by giving six reasons (see also his article
‘Should Public Law Remedies be Discretionary?” 1991
PL. p.64). A detailed and emphatic criticism of the
‘useless formality theory’ has been made much earlier
in ‘Natural Justice, Substance or Shadow’ by Prof. D.H.
Clark of Canada (see 1975 PL.pp.27-63) contending
that Malloch (supra) and Glynn (supra) were wrongly
decided. Foulkes (Administrative Law, 8th Edn. 1996,
p.323), Craig (Administrative Law, 3rd Edn. P.596) and

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others say that the court cannot prejudge what is to be
decided by the decision-making authority. De Smith (5th
Edn. 1994, paras 10.031 to 10.036) says courts have not
yet committed themselves to any one view though
discretion is always with the court. Wade
(Administrative Law, 5th Edn. 1994, pp.526-530) says
that while futile writs may not be issued, a distinction
has to be made according to the nature of the decision.
Thus, in relation to cases other than those relating to
admitted or indisputable facts, there is a considerable
divergence of opinion whether the applicant can be
compelled to prove that the outcome will be in his
favour or he has to prove a case of substance or if he
can prove a ‘real likelihood’ of success or if he is
entitled to relief even if there is some remote chance of
success. We may, however, point out that even in cases
where the facts are not all admitted or beyond dispute,
there is a considerable unanimity that the courts can, in
exercise of their ‘discretion’, refuse certiorari,
prohibition, mandamus or injunction even though
natural justice is not followed. We may also state that
there is yet another line of cases as in State Bank of
Patiala v. S.K. Sharma (1996 (3) SCC 364), Rajendra
Singh v. State of M.P. (1996 (5) SCC 460) that even in
relation to statutory provisions requiring notice, a
distinction is to be made between cases where the
provision is intended for individual benefit and where a
provision is intended to protect public interest. In the
former case, it can be waived while in the case of the
latter, it cannot be waived.

We do not propose to express any opinion on the

correctness or otherwise of the ‘useless formality
theory’ and leave the matter for decision in an
appropriate case, inasmuch as the case before us,
‘admitted and indisputable’ facts show that grant of a
writ will be in vain as pointed by Chinnappa Reddy, J.”

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19. Natural justice is the essence of fair adjudication, deeply rooted in

tradition and conscience, to be ranked as fundamental. The purpose of

following the principles of natural justice is the prevention of miscarriage

of justice.

20. Above being the position, we set aside the impugned order and remit

the matter to the High Court to consider the matter afresh after issuance of

notice to the respondents in the Criminal Revision Petition No.2163 of 2007

which will stand restored.

21 The appeal is allowed.

…....……….…….………….J.
(Dr. ARIJIT PASAYAT)

..………………….…………J.
(ASOK KUMAR GANGULY)
New Delhi,
March 16, 2009

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