Audi Alteram Partem

Audi Alteram Partem 5. Observations of the Hon’ble Supreme Court in the following terms in the case of Maneka Gandhi Vs. Union of India, [1978 AIR 597, 1978 SCR (2) 621] establishes that the right to be heard is an inherent one and can be claimed even when not granted by statutory provisions: It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa v. Dr. (Miss) Binapani Dei & Ors.[ (1) AIR 1967 S.C. 1269 at 1271] in the following words "The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed, it need not be shown to be super- ,added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a Person is made, the order is a nullity. That is a basic concept of the rule of law and 19 importance thereof transcends the significance of a decision in any particular case." 6. Audi Alteram Patem which is basically a protection against arbitrary administrative action comprises within itself a number of rights. This rule implies that the accused has a right to (a) know the charge (b) inspect documents (c) know the evidence (d) cross examine witnesses (e) lead evidence 7. In essence, the protections granted under Article 311 (2) of the Constitution as well the CCA Rules are codification of the above principle of natural justice. 8. As seen above, the principles of natural justice supplement law and not supplant law. Thus they can be exempt by express statutory provisions or by necessary implications. One instance of exemption by statutory provisions is exemption prescribed by the second proviso to Article 311 (2) which explicitly states that “this clause shall not apply”. 9. In Maneka Gandhi Vs. Union of India, [1978 AIR 597, 1978 SCR (2) 621] the contention of the petitioner was that her Passport was impounded without giving her an opportunity of defence. Apparently, providing an opportunity of defence before impounding the Passport might defeat the very purpose of the action, because the moment the authorities initiate action for impounding the Passport, it would be possible for the person concerned to flee abroad on the strength of the Passport, which is yet to be impounded. There may be extra-ordinary situations when Postdecisional hearing might be provided instead of Pre-decisional hearing. 10. The components of the right to hearing as enumerated above are general in nature. They should not be perceived as inviolable essential ingredients of all administrative actions, In the case of Hira Nath Mishra and Ors Vs. Principal Rajendra Medical College, AIR 1973 SC 1260, (1973) IILLJ 111 SC, (1973) 1 SCC 805, three students had challenged the order of the Principal expelling them from the college for two academic sessions allegedly on charges of molestation of girl students. One of the submissions of the petitioners was that “… the enquiry, if any, had been held behind their back; the witnesses who gave evidence against them were not examined in their presence, there was no opportunity to cross-examine the witnesses with a view to test their veracity…”. Repelling the submissions of the Appellants, the Hon’ble Supreme Court held as under: “11. Rules of natural justice cannot remain the same applying to all conditions. We know of statutes in India like the Goonda Acts which permit evidence being collected behind the back of the goonda and the goonda being merely asked to represent against the main charges arising out of the evidence collected. Care is taken to see that the witnesses who gave statements would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross- 20 examine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However unsavoury the procedure may appear to a. judicial mind, these are facts of life which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies. Under the circumstances the course followed by the Principal was a wise one. The Committee whose integrity could not be impeached, collected and sifted the evidence given by the girls. Thereafter the students definitely named by the girls were informed about the complaint against them and the charge. They were given an opportunity to state their case. We do not think that the facts and circumstances of this case require anything more to be done. 12. There is no substance in the appeal which must he dismissed. The appeal is dismissed. There shall be no orders as to costs.”