What a Fair Hearing Contains
Chapter Seventy-Eight
Syllabus topic 5, "Procedural fairness"
Pages 233 to 235 of 430
In one line
A fair hearing has six parts, and a student who can list them can answer any problem question in this module.
In the wording a student can write in an exam: a fair hearing ordinarily requires notice of the case to be met, disclosure of the material relied on, an opportunity to be heard in answer, an opportunity to lead evidence and where necessary to test the other side's evidence, a decision by the authority that heard, and reasons; the content varies with the statutory framework, the nature of the enquiry and the consequences.
The six parts
One, notice. It must state the allegation with enough particularity to be answered, state the action proposed, and allow reasonable time. A notice which says only that the authority proposes to take action under a named section is no notice at all.
Two, disclosure. The person must be given the material on which the authority proposes to act. Deciding on undisclosed material is the commonest breach in practice: Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074.
Three, an opportunity to be heard. Written or oral. Oral is required where the facts are disputed, where credibility is in issue, or where the consequences are grave; written is often enough for a simple factual point.
Four, evidence. The person may produce his own material, and where the authority relies on witnesses he may in a proper case cross-examine them, which is [Cross-Examination and Legal Representation].
Five, a decision by the authority that heard. Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, and [Institutional Decisions: He Who Decides Must Hear].
Six, reasons. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.
What is variable and what is not
Not variable. That the person knows the case, and that he has an opportunity to answer before the decision. Those two are the core, and their absence is fatal.
Variable. Whether the hearing is oral, whether cross-examination is allowed, whether a lawyer may appear, how long is reasonable, how detailed the reasons must be.
That distinction is the answer to almost every problem question, because it lets a student say which complaints are fatal and which are not.
The prejudice test
Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090.
Facts. A bank employee was dismissed after a departmental enquiry. He was served with a show cause notice at Kanpur where he was then living and given fifteen days to reply, and the order was passed shortly afterwards. The High Court held that the punishment order had been passed without proper application of mind and allowed a fresh representation.
Held. The Supreme Court restated the principles: natural justice is not an unruly horse and its concept has undergone a great deal of change; the rules are not embodied rules and what particular rule applies depends on the facts, the statutory framework and the nature of the enquiry; and the test is whether prejudice has in fact been caused. Where the employee had notice, a real opportunity and no prejudice is shown, the order will not be set aside merely because the opportunity could have been fuller.
What a Fair Hearing Contains
Why it matters here. It is the corrective to a mechanical approach: a fair hearing is measured by whether the person could meet the case, not by whether every step was taken.
A checklist for a problem question
- Was he told what was alleged?
- Was he given the material relied on?
- Was he allowed to answer, and in a form suited to the issues?
- Was he allowed to produce his own material, and to test theirs where credibility mattered?
- Did the person who heard him decide?
- Were reasons recorded?
- If a step was missed, did it cause prejudice?
A worked example
A municipal corporation proposes to blacklist a contractor. It issues a notice saying that his conduct in respect of contract number 47 is under consideration and that he may show cause within three days. It relies on a vigilance report he never sees, hears him for five minutes, and the order is signed by the Commissioner although the Additional Commissioner heard him. The order says the explanation was found unsatisfactory.
Six defects against the checklist. The notice does not state the allegation. Three days is not reasonable time for a blacklisting. The vigilance report was not disclosed, which is Karunakar. The hearing was inadequate for a matter with those consequences. The person who heard did not decide, which is Gullapalli. And the reasons are not reasons at all, which is S.N. Mukherjee. Prejudice is obvious, so the Canara Bank qualification does not help the corporation.
Distinctions that carry marks
| Fatal defect | Curable or non-fatal defect | |
|---|---|---|
| Examples | No notice of the allegation; no opportunity at all; decision by one who did not hear; reliance on undisclosed material | Slightly short time where an adjournment was available; no oral hearing where the facts were admitted; brief reasons |
| Test | Prejudice is obvious | Prejudice must be shown: Canara Bank |
What this does NOT mean
It does not mean the enquiry must look like a trial. Administrative bodies are not bound by the Evidence Act or the Code of Civil Procedure.
It does not mean every missed step is fatal. Prejudice decides.
It does not mean the list is closed. Legitimate expectation may add a right to consultation, and a statute may add more.
What a Fair Hearing Contains
Quick revision
Six parts: notice, disclosure, an opportunity to answer, evidence and where necessary cross-examination, a decision by the person who heard, and reasons. The core, which never varies, is knowing the case and being able to answer before the decision. The rest varies with the statute, the issues and the consequences. Canara Bank makes prejudice the practical test, and Karunakar, Gullapalli and S.N. Mukherjee supply three of the six parts.
Test yourself
1. Which two elements of a fair hearing never vary? Knowing the case to be met, and having an opportunity to answer it before the decision is made.
2. What is the practical test where a step has been missed? Whether prejudice has in fact been caused: Canara Bank.
3. Is an oral hearing always required? No. It is required where facts are disputed, credibility is in issue, or the consequences are grave; otherwise a written opportunity may suffice.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.