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  

J U D G M E N T

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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