TaxTMI 
TaxTMI 
2005 (3) TMI 476
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....iry proceedings and findings, within a stipulated time and direction was given to the Disciplinary Authority to consider the submission and pass a fresh order. High Court further directed that the period during which respondent was out of service was to be treated as period under suspension, and the employee was to be paid subsistence allowance. It would be relevant to note that the respondent filed a writ petition questioning the order directing his dismissal from service. Learned Single Judge came to hold that the quantum of punishment, i.e., dismissal from service was disproportionate to the misconduct proved. It was, however, held that no prejudice was caused to the writ petitioner and there was no violation of principles of natural justice. Both the writ petitioner and the present appellant had preferred writ appeals before the High Court, which were heard and disposed of by the impugned common judgment. 3. In support of the appeal, Mr. Sudhir Chandra, learned senior advocate, submitted that the show-cause notice issued on 2-7-1992. Since the respondent was not working at the branch where he was originally posted and was living at Kanpur, the notice was served on him on 6-8....
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....hed to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order....
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....iples 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 formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 9. 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. 10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining dis....
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.... 337, Lord Wright observed that it was not desirable to attempt 'to force it into any procustean 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. 13. 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, 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....
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....rformed 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. 15. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew & 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 AC 614, 623 JC Sir Robert P. Collier, speaking for the Judicial Committee of Privy Council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works [1884....
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....n 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 stattuerit parte inaudita alteram actquam licet dixerit, 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 Boswell's case (1606) 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 open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 17. 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 (at paras 22 and 23 at pages 378-379 of Comp. LJ) as under : "22. Before we go into the final aspect of this conte....
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....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 Glymn, supra, were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p. 323), Craig (Administrative Law, 3rd Edn. p. 596), and 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 th....
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....dings reveal that several acts of misconduct unbecoming a bank official were committed by the respondent. 22. It is to be noted that the detailed charge sheets were served on the respondent-employee who not only submitted written reply, but also participated in the proceedings. His explanations were considered and the Inquiry Officer held the charges to have been amply proved. He recommended dismissal from services. The same was accepted by the Disciplinary Authority. The proved charges clearly established that the respondent-employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the bank. In the appeal before the prescribed Appellate Authority, the findings of the Inquiry Officer were challenged. The Appellate Authority after analysing the materials on record found no substance in the appeal. 23. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter. 24. Lord Greene said in 1948 in the famous Wednesbury case [1948] 1 KB 223 that when a statute gave discretion to an administrator....
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.... 37. The development of the principle of 'strict scrutiny' or 'proportionality' in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of the convention, but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the courts then applied the strict scrutiny test. In the Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 SC 109 (at pp. 283-284), Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd. [1993] AC 534, Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. of State for Home Deptt., Ex. p. Simms [1999] 3 All ER 400 (HL), the right of a prisoner to grant an interview to a j....
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....rence must be both necessary and proportionate (ibid pp. 750-51). In a famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case [1991] 1 AC 696. Where Convention rights were in question, the courts could exercise a right of primary review. However, the courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows: 'The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgm....
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.... to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment." (p. 399) 26. In B.C. Chaturvedi v. Union of India [1995] 6 SCC 749, it was observed: "18. A review of the above legal position would establish that the Disciplinary Authority, and on appeal, the Appellate Authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty im....
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....the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and Ccsu principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under articles 19, 21, etc. are involved and not for article 14. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not, therefore, ....