CONCEPT OF POST DECISIONAL HEARING

INTRODUCTION

Principles of natural justice have been developed by democratic government for protection of rights of individuals and regulation of power against the arbitrary and ruthless use of power. One such principle of natural justice is ‘Audi Alteram Partem’ which has fundamental rule that no one should be censured unheard. Right to be heard is an essential element of principles of natural justice. Audi Alteram Partem is a rule which ensures that fair decision is made out of statutory authority of courts. This concept strengthens up the implementation of post decisional hearing.

Post-decision hearing is held where pre-decision hearing would not be viable. It is done after provisional decision is reached.

AUDI-ALTERAM PARTEM (RULE OF FAIR HEARING)

It means ‘hear the other side’ or ‘no man should be condemned unheard’ or ‘both the sides must be heard before passing any order’.

The duty to hear is imparted in all those actions which cause detriment to a person. No order involving adverse civil consequences can be passed against any person without giving him any opportunity to be heard against the passing of such order. A statue which impliedly provides or is silent, in both hearing, is implied but when it expressly excludes the hearing the court may have to exclude it to development which have expanded the scope of the rule of fair hearing are:

  1. An activist interpretation of Article 21 of the constitution whereby the words personal liberty as well as procedure established by law acquired new dimensions incorporating the duty to hear in respect to various administrative actions which cause infraction of personal liberty.
  2. Abandonment the courts of the policy of requiring hearing only in cases of quasi-judicial actions and extending such a requirement to administrative actions also.

The Audi alteram partem principle is the fundamental idea of the natural justice system. This is ‘sine qua non’ in any civilized society and means that no one is to be prosecuted without being listened. The person must get an incentive to defend himself.

RIGHT TO HEARING

 Constitutionally the rules of natural justice are must if administrative actions are not to violate certain fundamental rights. The violation of natural justice results in arbitrariness, therefore, violation of natural justice is violation of equality clause of Article 14. The court has held absolute discretion without any guidance for its exercise and without having to follow the principles of natural justice to be a reasonable restriction under Article 19(2) to (6). The right to be heard is also an aspect of ‘procedure established by law’ under Article 21 means procedural fairness.

POST DECISIONAL HEARING

Meaning:

The principle of post-decision hearing was created to ensure a balance between administrative effectiveness and individual justice. After a preliminary decision was made by the authorities, an individual would be heard during a post-decision hearing. In such cases, a standard pre-decisional hearing is unfeasible to the authorities and decisions would be taken on first-instance grounds before the person expresses his or her opinions, because it would be deemed necessary for the authorities to have post-decision hearing in accordance with the principle of Natural Justice.

Development and Proposal of idea:

The idea of post decisional hearing has been developed to maintain a balance between administrative efficiency and the fairness to the individual. The harmonizing tools were developed by Supreme Court in Maneka Gandhi vs. Union of India[1].

The post decisional hearing will give satisfaction to the affected individual that was at least given same opportunity of hearing even at a belated stage. The judicial opinion, however is not uniform about the stage. The judicial opinion however is not uniform about the stage at which the rules of natural justice are applicable.

In the case of Maneka Gandhi vs. Union of India,

Maneka Gandhi’s passport was impounded. She challenged the order of the R.P.O. on the ground that the principle of natural justice have not been followed. No hearing was allowed to her as they contended that if the hearing was done to her then the very purpose of impounding would have been frustrated. Hence, no hearing was held for the petitioner. The court evolved this because it said that you cannot have straight jacket formula. It is important but most important part is that justice has to be given to the affected party so that principles of natural justice are followed in every situation. You can pass the orders after pre decisional hearing but this order is interim but after post decisional hearing the order will become final in nature and thus the order of the passport authorities was considered as interim order. And becomes final after post decisional hearing.

Justice P.N. Bhagwati propounded three important principles:

  1. For an administrative function principles of natural justice have to be applied.
  2. Reasoned decisions.
  3. Concept of post decisional hearing.

ANOTHER CASE LAWS:

In the case, Baldev Singh v. State of H.P.[2]  in both these cases stress was being laid on Post Decisional hearing on the other hand there were series of decisions which laid down because Post Decisional Hearing is doing a mere lip service. I t is not serving the purpose of Audi Alteram Partem. Because once a decision of Post Decisional Hearing to the affected party is a formality as the authorities are rigid in bringing change in their decision as arrogance, egoism comes into picture. It is a mere formality done in the papers so there is no need to follow the same.

In the case, K.L. Shephard v. Union of India[3]the concept of Post Decisional Hearing was rejected. In this case there were three banks Hindustan Commercial Bank, Bank of Cochin and Lakshmi Commercial Bank by virtue of banking regulation Act, a scheme of amalgamation was introduced where these banks were amalgamated with 3 Nationalized Banks.

Once this amalgamation took place the services of Employees of these 3 Banks were not taken into account i.e. they lost their jobs. Accordingly the employees approached the court stating that the employees were not given any opportunity to present their case and their right to be heard has been violated. The court ruled that Post-Decisional hearing does not serve any purpose and it is a mere formality.

CONCLUSION

The implementation of this theory does not come with a strait jacketed formula, but rather is based on the facts of the case and its condition. In case pre-decision hearing cannot be implemented, post-decision hearing can come to the aid.


[1] 1978 SC 597

[2] Criminal Appeal No. 218 of 2013

[3] 1987 (4) SCC 431