Krishnadatt Awasthy v. State of MP, 2025 INSC 128: a Case on Natural Justice – Paradoxes Surged; But, Adjudged on Sound Judicial Principles.

Calvin Principle, and the Doctrine “to do a great right” court can do “a little wrong”, not applied.

Saji Koduvath, Kottayam.

Introduction

In Krishnadatt Awasthy v. State of M.P., 29 January, 2025 (Sudhanshu Dhulia, Hrishikesh Roy, S.V.N. Bhatti), the Supreme Court of India rendered the final verdict in a referred matter from a two-judge (split) verdict (Krishnadatt Awasthy v. State of Madhya Pradesh, 2024-4 SCR 151). Doctrines of rule against bias (nemo judex in causa sua)and the right to a fair hearing (audi alteram partem) were considered in detail in this case. In the final pivotal words the Apex Court said as under:

  • “Therefore, for an allegation of bias to be proved, it is imperative that the procedural safeguards of a fair hearing are observed allowing for establishment of the relevant facts.”

A Paradox

(When looked on ‘non-impleadment’ of necessary parties – and not ‘hearing’ them – as a ground as to violation of Natural Justice.)

  • Justice K.V. Vishwanathan found – the legal process was faulty for “gross violation” of the principles of natural justice (for non-impleadment) : : but, he upheld the selection and allowed the appeal.
  • Justice J.K. Maheshwari found – no violation of natural justice (for “non-impleadment is a useless formality“) :: but, held the selection illegal and dismissed the appeal. (Of course, no doubt, the Appeal is allowed on the specific finding – on violation of natural justice on ‘bias‘.)
  • (The Three Judge Bench, in reference, upheld the view of Justice K.V. Vishwanathan)

Facts in Brief

  • Some Teachers (Shiksha Karmis) were appointed in 1998.
  • An unsuccessful candidate challenged the selection and appointment of the Appellants.
  • Nepotism, corruption and bias, in the selection process, were the allegations.
  • Ten appointees were alleged to be the relatives of the members of the selection committee.
  • The Collector accepted the challenge and set aside the appointments.
  • The Appellants filed a Revision Petition. It was dismissed.
  • They filed a Writ Petition but it was also dismissed. Hence before the SC.

Contentions of the Appellants (Selected Teachers)

  1. They highlighted the distinction between cases of “no opportunity at all” and  “adequate opportunity”. They were not heard at all by the Collector.
  2. Merely being relatives, undue favour cannot be presumed.  Marks allocation was objective.
  3. Collector’s decision was violation of natural justice. They were not made parties in the appeal.
  4. There was No clear evidence of prejudice or unfair advantage.
  5. The appellants were finally heard in revision proceedings. It cured the procedural defects.
  6. Ultimately, it is pleaded that the appellants have been working for the last 25 years and that one of the appellants has, in fact, retired while others are on the verge of retirement.

Respondent’s Arguments

  1. They contend there was no “prejudice” due to the non-compliance of the principles of natural justice by the non hearing of the Collector.
  2. Even though the appellants received less marks in the basic qualifying examination, they have obtained higher marks in the interview.
  3. The relatives have come to be appointed.
  4. There was reasonable likelihood of bias and that the relatives of committee members have obtained higher marks during the interview.

The Supreme Court: Split Verdict by Two-Judge-Bench.

  • Justice K.V. Vishwanathan, concluded that the selection of appellants was erroneously set aside, in breach of the principle of audi alteram partem. The principle must be adhered to at the original stage. Furthermore, Rule 9 of the Appeal and Revision Rules, 1995 was not complied with. It was also observed that the orders of the Collector made no reference either to definition of ‘relative’ in explanation to Section 40(c) of Adhiniyam nor to the resolution providing for recusal. Non-impleadment of parties amounted to ‘no opportunity at all’ for hearing. Though found that the selection process was faulty for Collector’s decision was violation of natural justice (for they were not made parties in the appeal) upheld the selection and allowed the appeal holding as under:
  • “Approaching the home stretch, one question still remains:- Whether at this distance of time should the matter be remitted back to the Collector for a fresh enquiry? The selection is of the year 1998. By virtue of interim orders through out, the appellants have functioned in office and are discharging their duties for the past more than twenty five years. One of them has even superannuated. At this distance of time, it will not be in the interest of justice to remand the matter for a fresh enquiry.”
  • Justice J.K. Maheshwari upheld the decision to cancel the appointment of the appellants and opined that the first limb of natural justice i.e. ‘rule against bias’ was irrefutably proved, as reasonable likelihood of bias was established. The plea of non-impleadment was considered to be a useless formality. Unless prejudice is demonstrated, mere non-joinder at the initial stage does not violate the principles of natural justice.
  • Hence, the case was before the three-Judge Bench.

Supreme Court Final Verdict by Three-Judge-Bench

The Apex Court (three-judge-bench) considered three issues.They were the following:

A. Whether the selection is vitiated for violation of the first limb of natural justice i.e. rule against bias?
B. Where it is a case of violation of the principle of audi alteram partem? Is demonstration of prejudice necessary to succeed with a claim of violation of the principle of audi alteram partem?
C. Whether the breach of the principle of audi alteram partem at the original stage can be cured, at the Revisional stage?

The first issue (related to nepotism, corruption and bias, in the selection process) is answered in favour of the selected persons (Appellants)  as under –

  • “The selection is not vitiated on account of violation of the nemo judex rule”.

The second issue (related to Collector’s decision – whether violation of natural justice, for the selected persons were not heard by him, before taking a decision against them) is also answered in favour of the (Appellants) as under –

  • “In the absence of notice, the breach strikes at the fundamental core of procedural fairness, rendering the decision invalid unless exceptional circumstances justify such deviation. The vitiation of selection was not only a breach of the principles of natural justice but also contrary to the express statutory provision that required for an opportunity to show cause and an opportunity to provide self-defence. The prejudice theory must be understood as an exception to the general rule and cannot therefore be the norm. In view of the foregoing, a gross violation of the principle of audi alteram partem is noticed in the present case.”

The third issue related to Collector’s decision – the selected persons (Appellants) were not heard by him. This allegation of the selected persons was resisted by the Respondents/petitioners saying that the defect had been cured by the proceedings before the revisional/appellate body. It is also answered in favour of the selected persons (Appellants) as under –

  • ” … it must be concluded that a defect at the initial stage cannot generally be cured at the appellate stage. Even in cases where a ‘full jurisdiction’ may be available at the appellate stage, the Courts must have the discretion to relegate it to the original stage for an opportunity of hearing. Therefore, the ex-parte decision to set aside the appellants selection stands vitiated.”

The Court, in Conclusion, upheld the opinion of Justice KV Vishwanathan, observing as under:

  • “68. The principle of audi alteram partem is the cornerstone of justice, ensuring that no person is condemned unheard. This principle transforms justice from a mere technical formality into a humane pursuit. It safeguards against arbitrary decision-making, and is needed more so in cases of unequal power dynamics [Upendra Baxi, ‘Preface: The Myth and Reality of the Indian Administrative Law’, in IP Massey(ed) ‘Administrative Law’ (8th edn, EBC 2012)].
  •  69. An allegation of bias, can only be proved if facts are established after giving an opportunity of hearing. This process requires a fair and transparent procedure in which the concerned parties are given an adequate opportunity to present their case. Such an opportunity allows the accused party or the affected individuals to respond to the allegations, provide evidence, and clarify any misgivings regarding the decision-making process. Therefore, for an allegation of bias to be proved, it is imperative that the procedural safeguards of a fair hearing are observed allowing for establishment of the relevant facts.”

ISSUE A : Authorities Referred to.

  • This issue related to nepotism, corruption and bias, in the selection process.

AK Kraipak v Union of India, (1969) 2 SCC 262

  • When a statute specifies the procedure for administrative decision making, the principles of natural justice supplement do not substitute the statutory procedure. However, even if the statute does not provide for the administrative procedure, the authorities are bound to make decisions in adherence to the principles of natural justice.

Dimes v. Proprietors of the Grand Junction Canal(1852) 3 HLC 759

  • The principle of nemo judex causa sua found its origin in English law. In this decision the House of Lords in a case concerning pecuniary interest observed that the rule against bias extends not only to actual bias but also to the appearance of bias. This principle was later extended to other forms of interest in R v. Sussex Justices ex parte McCarthy [1924] 1 KB 256  where it was held that ‘even a suspicion that there has been improper interference with the course of justice’, would lead to the vitiation of proceedings. Lord Hewart noted that it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Lord Denning in Metropolitan Properties Co. (FGC) v Lannon(1969) 1 QB 577  noted that, ‘if right minded  persons would think that, in the circumstances, there was a ‘real likelihood of bias’ on his part, he should not sit. And if he does sit, his decision does not stand’. It was further held that ‘there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman as the case may be, would, or did, favour one side at the expense of the other.’

R v Gough 1993 AC 646

  • The emphasis on ‘likely or probable’ as noted by Lord Denning, was considered in R v Gough 1993 AC 646 where the Court shifted the focus to the possibility of bias rather than its probability. The test articulated in Gough(supra), was whether there was a ‘real danger of bias’ rather than a ‘real likelihood’ of bias. It prioritised the court’s assessment of bias over the perception of a fair-minded and informed observer emphasising that the court ‘personifies the reasonable man’. This test was criticised in other common law jurisdictions for veering away from the public perception of bias.

Porter v Magill(2002) 1 All ER 465  

  • The House of Lords modified the said test in Porter v Magill (2002) 1 All ER 465  and pronounced as under:
  • “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, it must then ask whether those circumstances would lead to a fair minded and informed observer to conclude that there was a real possibility that the Tribunal was biased.”

Manak Lal v Dr. Prem Chand Singhvi 1957 SCC OnLine SC 10; 

Also:

  • Ranjit Thakur v. Union of India (1987) 4 SCC 611; 
  • Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School, (1993) 4 SCC 10;
  • S Parthasarathi v. State of AP (1974) 3 SCC 459; 
  • SK Golap and others v Bhuban Chandra Panda 1990 SCC OnLine Cal 264;
  • GN Nayak v Goa University (2002) 2 SCC 712.
  • Indian Courts have consistently adopted the ‘real likelihood’ test to determine bias

CORE (Central Organisation for Railway Electrification v. M/s ECI SPIC SMO MCML 2024 SCC OnLine SC 3219) –

  • A Constitution bench speaking through DY Chandrachud CJ summarised the Indian position thus:
  • “Although there have been vacillations about the test in England, the Indian courts have been largely consistent in their approach by applying the test of real likelihood of bias or reasonable apprehension of bias. Recently, the court has used the real danger of bias test. However, the above discussion shows that there is no significant difference between the real danger of bias test and the real possibility of bias test if the question of bias is inferred from the perspective of a reasonable or fair-minded person.”

Union of India v  Tulsiram Patel, (1985) 3 SCC 398; Swadesh Cotton Mills v Union of India, (1981) 1 SCC 664 . 

  • The nemo judex rule is subject to the rule of necessity and yields to it. 

J Mohapatra v State of Orissa, (1984) 4 SCC 103

  • The doctrine of necessity serves as an exception to the rule against bias.

Charanjit Singh v Harinder Sharma(2002) 9 SCC 732

  • In a small town like Mansa, it would be difficult to constitute a Selection Committee of total strangers. The relative of some candidate or the other is bound to find a place on the Committee. Therefore, the Court is required to see whether the prescribed balancing mechanism was followed when a relative of the member of the Selection Committee was being considered.

A.K. Kraipak & Ors. V. Union of India , (1969) 2 SCC 262

  • Significantly expanded the scope of judicial review of administrative decisions. It is Cited in  Javid Rasool Bhat v. State of Jammu & Kashmir(1984) 2 SCC 682  where distinguished Kraipak(supra) as under:
  • “Great reliance was placed by the learned counsel on A.K. Kraipak & Ors. V. Union of India on the question of natural justice. We do not think that the case is of any assistance to the petitioners. It was a case where one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the clams of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The court had no hesitation coming to the conclusion that there was a reasonable likelihood of ibis and therefore, there was a violation of the principles of natural justice. In the case before us, the Principal of the Medical College, Srinagar, dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principals of natural justice.”

Ashok Kumar Yadav v State of Haryana (1985) 4 SCC 417

  • A five-judge constitution bench of this Court endorsed the decision in Javed Rasool(supra) and held that when a near relative of a member of the Public Service Commission is a member of the Selection Committee, it will be enough if the concerned member desists from interviewing his relation. He should withdraw from the committee when his relative appears for the interview and he should not participate in discussion in regards to the merit of the candidate and even the marks should not be disclosed to the concerned member.

Jaswant Singh Nerwal v State of Punjab 1991 Supp (1) SCC 313,

  • The father of one of the selected candidates was in the selection committee conducting the interview. However, he did not participate in the deliberation when his son appeared for viva voce. It was held therein that selection was thus not vitiate

ISSUE B : Authorities Referred to.

  • This issue related to Collector’s decision – whether violation of natural justice, for the selected persons were not heard by him, before taking a decision against them.

Ridge v Baldwin[1964] AC 40

  • It is a significant landmark decision in British administrative law and is often referred to as a magna carta of natural justice.

Mohinder Singh Gill v. Chief Election Commr  (1978) 1 SCC 405. It is held as under: 

  • “Today in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas, it is only improving the quality of government by injecting fair play into its wheels.. law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by social necessity.”

Swadeshi Cotton Mills v. Union of India(1981) 1 SCC 664. It is held as under:

  • “This rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications.”

Maneka Gandhi v Union of India(1978) 1 SCC 248

  • Justice Bhagwati, described natural justice as a profound ‘humanising principle’ designed to imbue the law with fairness and ensure justice.

Wade and Forsyth H W R Wade and C F Forsyth, Administrative Law (Oxford University Press, 11th ed, 2014). It is held as under:

  • “Judges are naturally inclined to use their discretion when a plea of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the the basic principle that fair procedure comes first, and that it is only after hearing both sides that merits can be properly considered. In the case of a tribunal which must decide according to, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. But in the case of a discretionary administrative decision, such as dismissal of a teacher or expulsion of a student, hearing their case will often soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be justified. This is the essence of a good and considerate administration, and the law should take care to preserve it.”

 Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545)

  • The opportunity of hearing is considered so fundamental to any civilised legal system that the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds 

SL Kapoor v Jagmohan(1980) 4 SCC 379 

  • Justice Chinappa Reddy, considered such arguments to be ‘pernicious’ and held that ‘the non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary’.  The Court, however, has drawn out an exception where ‘on admitted or indisputable facts only one conclusion is possible, and under the law, only one penalty is permissible, then the Court may not compel the observance of natural justice’  (Also Referred: Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664; Aligarh Muslim University v Mansoor Ali Khan (200) 7 SCC 529).

Professor I.P. Massey, Administrative Law (8th Edition,2012). It is held as under:  

  • “Before the decision of the Highest Court in SL Kapoor v Jagmohan, the rule was that the principles of natural justice shall apply only when the an administrative action has caused some prejudice to the person, meaning thereby that he must have suffered some ‘civil consequences’.
  • Therefore, the person had to show something extra in order to prove ‘prejudice’ or civil consequences. This approach had stultified the growth of administrative law within an area of highly practical significance. It is gratifying that in Jagmohan, the Court took a bold step in holding that a separate showing of prejudice is not necessary. The non-observance of natural justice is in itself prejudice caused. However, merely because facts are admitted or are undisputable it does not follow that the principles of natural justice need not be observed.”

Bank of Patiala v SK Sharma, (1996) 3 SCC 364 

  • Where an enquiry is not convened by any statutory provision and the only obligation of the administrative authority is to observe the principles of natural justice, the Court/tribunal should make a distinction between a total violation of the rule of fair hearing and violation of the facet of that rule. In other words, a distinction must be made between ‘no opportunity’ or ‘no adequate opportunity’. In the case of the former, the order passed would undoubtedly be invalid and the authority may be asked to conduct proceedings afresh according to the rule of fair hearing. But in the latter case, the effect of violation of a facet of the rule of fair hearing has to be examined from the standpoint of prejudice.

Dharampal Satyapal Ltd. v. Dy. Comm. Of Central Excise, Gauhati and Ors. (2015) 8 SCC 519. It is held as under:

  • “42. So far so good. However, an important question posed by Mr Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman [1943 AC 627].
  • This Court also spoke in the same language in Board of High School and Intermediate Education v. Chitra Srivastava [(1970) 1 SCC 121]……”

State of UP v Sudhir Kumar Singh(2021) 19 SCC 706

  • The position of law was summarised as under:
  • “(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
  • (2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
  • (3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
  • (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
  • (5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”

Madhyamam Broadcasting Ltd. v. Union of India(2023) 13 SCC 401. It is held as under:

  • “55.1.Firstly, procedural fairness was no longer viewed merely as a means to secure a just outcome but a requirement that holds an inherent value in itself. In view of this shift, the courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case. [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379; “The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary; also see Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 : AIR 1981 SC 818] Instead, the courts would have to decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome. In compliance with this line of thought, the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds. [Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545; C.B. Gautam v. Union of India, (1993) 1 SCC 78; Sahara India (Firm) (1) v. CIT, (2008) 14 SCC 151; Kesar Enterprises Ltd. v. State of U.P., (2011) 13 SCC 733]
  • 55.2. Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14, 19 and 21. The facet of audi alteram partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal.
  • While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness. The burden is on the applicant to prove that the procedure that was followed (or not followed) by the adjudicating authority, in effect, infringes upon the core of the right to a fair and reasonable hearing. [See para 12 of Bhagwati, J.’s judgment in Maneka Gandhi v. Union of India, (1978) 1 SCC 248]”

CORE (Central Organisation for Railway Electrification v. M/s ECI SPIC SMO MCML 2024 SCC OnLine SC 3219. It is held as under:

  • The five judge bench described the object of observing the principles of natural justice as under:
  • “80. …The object of observing the principles of natural justice is to ensure that “every person whose rights are going to be affected by the proposed action gets a fair hearing.” The non-observance of natural justice is itself a prejudice to any person who has been denied justice depending upon the facts and circumstances of each case. The principle of procedural fairness is rooted in the principles of the rule of law and good governance. In Madhyamam Broadcasting Limited v. Union of India(2023) 13 SCC 401 , this Court held that the requirement of procedural fairness “holds an inherent value in itself.”

State Govt. Houseless Harijan Employees Association v State of Karnataka (2001) 1 SCC 610

  • The question about whether prejudice was caused due to non-observance of the principles of natural justice could not be raised where such principles are incorporated into statutory procedure.

Considering the above, Justice Vishwanathan noted as under:

  • “At least at the stage when the Collector identified all the 14 names, Rule 9 of the A&R Rules, ought to have been complied with and notices ought to have been issued giving an opportunity to the selected candidates to set out their version and thereafter hold such enquiry as the Collector may deem necessary. This was also not done. This is all the more when only the appointment of the 14 candidates of the 249 appointees/candidates were set aside on the ground that 33 they were relatives and it was not a case of setting aside of the entire selection.
  • It is well settled that in service matters when an unsuccessful candidate challenges the selection process, in a case like the present where the specific grievance was against 14 candidates under the category of relatives and when the overall figure was only 249, at least the candidates against whom specific allegations were made and who were identified ought to have been given notices and made a party. This Court has, even in cases where the selected candidates were too large, unlike in the present case, held that even while adjudicating the writ petitions at least some of the selected candidates ought to be impleaded even it is in a representative capacity. It has also been held that in service jurisprudence, if an unsuccessful candidate challenges the selection process the selected candidates ought to be impleaded. [See J.S. Yadav vs. State of Uttar Pradesh and Another, (2011) 6 SCC  570 (para 31) and Prabodh Verma and Others vs. State of Uttar Pradesh and Others, (1984) 4 SCC 251 (para 28) and Ranjan Kumar and Others vs. State of Bihar and Others, 2014:INSC:276 = (2014) 16 SCC 187 (paras 4,5,8,9 & 13)] This is not a case where the allegation was that the mischief was so widespread and all pervasive affecting the result of the selection in a manner as to make it difficult to sift the grain from the chaff. It could not be said and it is not even the case of the State that it was not possible to segregate the allegedly tainted candidates from the untainted candidates. [See Union of India and Others vs. G. Chakradhar, (2002) 5 SCC 146 (paras 7 & 8), Abhishek Kumar Singh vs. G. Pattanaik and Others, 2021:INSC:305 = (2021) 7 SCC 613 (para 72).”

East India Commercial Co. Ltd. v. Collector of Customs AIR 1962 SC 1893; Uma Nath Pandey and Ors. v state of UP (2009) 12 SCC 40

  • Clear distinction has been crafted between the service of notice and the requirement of fair hearing.

 Ridge vs. Baldwin1964 AC 40

  • Referring this classic case it was recorded that where there is a total violation of principles of natural justice, the violation would be of a fundamental nature. It did not deal with the violation of the first limb of audi alteram partem principles, a situation of non-service of notice. The judgment in fact explicitly records that “a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such, and violation of a facet of the said principle. In other words, distinction between “no notice” “no hearing” and “no adequate hearing” or to put it in different words, “no opportunity” and “no adequate opportunity”, was highlighted. The judgement in SK Sharma (supra) is therefore inapplicable to the present matter which is a case of no notice whatsoever.

ISSUE C : Authorities Referred to.

  • This issue related to Collector’s decision – the selected persons (Appellants) were not heard by him. Therefore, whether the defect had been cured (Calvin principle) by the proceedings before the revisional body.

High Court of Australia in Australian Workers’ Union v Bowen (No. 2) (1948) 77 C.L.R. 601.

  • Bowen contested his dismissal by the General Council of the Union, claiming bias because the Union Secretary acted as both prosecutor and judge. While the Commonwealth Court of Conciliation and Arbitration ruled in his favour, the decision was overturned on appeal. The appellate court held that the Secretary’s role did not violate the rule against bias and, even if it had, any flaw in the original  proceedings was remedied by a fair appeal to the Annual Conference, which Bowen did not dispute.

Lord Denning in Annamunthodo v Oilfield Workers’ Trade Union [1961] AC 945 (PC)

  • It was ruled that a flaw in natural justice during the initial hearing could not be remedied by an appeal.

Leary v. National Union of Vehicle Builders(1970) 2 All ER 713

  • It is a leading authority on the point that a failure of natural justice at the initial stage cannot be cured at the appellate stage. The case involved the plaintiff’s expulsion by a Branch Committee of his trade union, at a meeting about which he was unaware. He approached the Appeals Council for relief against the order of the branch Committee, which conducted a full rehearing but upheld the Branch Committee’s decision. The plaintiff then filed a writ, seeking declarations that his expulsion from union membership as well as his position as area organizer was unlawful, invalid, and void. Megarry J framed the question thus:
  • “if a man has never had a fair trial by the appropriate trial body, is it open to an appellate body to discard its appellate function and itself give the man the fair trial that he has never had?. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal?… Even if the appeal is treated as a hearing de novo, the member   is being stripped of his right to appeal to another body from the effective decision to expel him’
  • It was held that the proper course in such a situation would be to hear the matter afresh:
  • “If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of a right of appeal when a valid decision to expel him is subsequently made. Such a deprivation is a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.”

Calvin v Carr (1979) 2 WLR 755

  • The Judicial Committee of the Privy Council only gave a qualified endorsement to the Leary principle. In Lloyd v McMahon(1987) 1 AC 625, Lord Templeman considered the Calvin principle but commented that instead of laying down general principles, the question arising in that case must be answered by considering the particular statutory provisions applicable therein. In that case, a distinction was drawn between full appeals where all the evidence may be examined and limited appeals on questions of law only or where the appellate body does not investigate findings of fact.

Indian courts have applied the Leary principle as a rule. See:

  • Institute of Chartered Accountants v. L. K. Ratna (1986) 4 SCC 537;
  • Fareed Ahmed v Ahmedabad Municipality AIR 1976 SC 2095; 
  • Shri Mandir Sita Ramji v Government of Delhi (1975) 4 SCC 298;
  •  Mysore SRT Corp v Mirza Khasim AIR 1977 SC 747;
  •  Laxmidhar v State of Orissa AIR 1974 Ori 127;
  •  Kashiram Dalmia v State AIR 1978 Pat 265; 
  • G Rajalakshmi v Appellate Authority AIR 1980 AP 100; 
  • Serajuddin Co. v State of Orissa AIR 1974 Cal 296 .

And the Calvin principle as an exception. See:

  • Charan Lal Sahu v Union of India, (1990) 1 SCC 613; 
  • Jayantilal Ratanchand Shah v Reserve Bank of India, (1996) 9 SCC 650; 
  • United Planters’ Association of Southern India v KG Sangameswaran, (1997) 4 SCC 741 
  • This is more so due to the institutional structure as the writ court does not usually go into facts and judicial review of administrative action is limited to the decision-making process and not the decision itself. In our view, the provision for an appeal should not rest on the assumption that the appellate body is infallible. When one party is denied the opportunity to present their case, the initial decision fails to provide meaningful guidance to the appellate authority, in achieving a fair and just resolution.

Professor Wade H. W. R. Wade, Administrative Law ((Oxford: Clarendon Press 1982) 

  • It is observed as under:
  • “In principle, there ought to be an observance of natural justice at both stages… If natural justice is violated at the first stage, the right to appeal is not so much a true right to appeal as a corrected initial hearing: instead of fair trial followed by appeal., the procedure is reduced to an unfair trial followed by fair trial.”

Professor Laurence Tribe Lawrence H. Tribe, ‘American Constitutional Law’ ((The Foundation Press 1978)

  • It is  pertinently observed that whatever the outcome, a valued human interaction in which the affected person experiences atleast the satisfaction of participating in the decision that vitally concerns her is of utmost importance:
  • “Both from the right to be heard and the right to be told why, are analytically distinct from the right to secre a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at atleast to be consulted about what is done with one.”

Institute of Chartered Accountants v. L. K. Ratna, 1986-4 SCC 537

  • The Supreme Court endorsed the position adopted by Megarry J. Rejecting the argument that an appeal to the High Court under Section 22A of the Chartered Accountants Act, 1949, could rectify the initial defect, Pathak J. declared the order null, void, and of no effect. This ruling was consistent with two earlier Supreme Court decisions in State of U.P. v. Mohammed Nooh1958 SCR 595  and Mysore State Road Transport Corporation v. Mirja Khasim (1977) 2 SCC 457, both of which established that an appeal cannot validate what is clearly a nullity.

Charan Lal Sahu v Union of India(1990) 1 SCC 613

  • The Supreme Court has invoked the Calvin principle only in exceptional circumstances. It is  a case concerning a challenge to the validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, the Court applied the Calvin principle, given the fact that the settlement fund was held to be sufficient to meet the needs of just compensation to the victims of the Bhopal gas leak tragedy, it was held that the grievance on the score of not hearing the victims first would not really survive. It recorded that “to do a great right” after all it is permissible sometimes “to do a little wrong”.

Conclusion

In this case, the Apex Court did not apply the Calvin principle, and the doctrine “to do a great right” it is permissible sometimes “to do a little wrong”. The Court was of the opinion that it is not a fit case to apply these principles as they are applied “only in exceptional circumstances“. The Court definitely found that violation of Natural Justice is ‘serious’. It is expressed in the following words –

  • “67. Following the above discussion, it must be concluded that a defect at the initial stage cannot generally be cured at the appellate stage. Even in cases where a ‘full jurisdiction’ may be available at the appellate stage, the Courts must have the discretion to relegate it to the original stage for an opportunity of hearing. Therefore, the ex-parte decision to set aside the appellants selection stands vitiated.”

Finally, the Court (though did not apply the Calvin Principle) allowed the appeal in favour of the appointees (not ‘paradoxically’; but, on sound judicial principles) observing as under:

  • “71. Since the selection pertains to the year 1998, and the appellants have continuously held office and performed their duties for over twenty-five years under interim orders, remanding the matter for a fresh inquiry would hardly be a practical exercise and will be an injustice to the appointees. The time lag can be better appreciated by bearing in mind that one of the appellants has already superannuated.”

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