Full Judgment Text
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6607/2024
CHAND RAM PUBLIC SCHOOL ..... Petitioner
Through: Mr. Rohit Sharma, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Amit Gupta and Ms. Prerna
Dhall, Advocates, for UOI.
Ms. Manisha Singh, Advocate, for CBSE
Ms. Hetu Arora Sethi, ASC with Mr. Arjun
Basra, Advocate, for GNCTD.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 22.05.2024
W.P.(C) 6607/2024
1. The petitioner was granted provisional affiliation for secondary
level education and for conducting the secondary level examinations
by the Central Board of Secondary Education (CBSE) with effect
from 1 April 2011 till 31 March 2014. Subsequently, the affiliation
was extended to the senior secondary level with effect from 1 April
2013 till 31 March 2016. The opening paragraph of show cause notice
dated 11 July 2023, from which these proceedings emanate,
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acknowledges the fact that the provisional affiliation granted to the
petitioner would have remained alive till 31 March 2026, had the
impugned proceedings not been taken against it.
2. Following a surprise inspection of the petitioner school which
was conducted on 22 December 2022, the petitioner was issued a
show cause notice by the CBSE on 11 July 2023. The show cause
notice alleged that the surprise inspection found various violations in
the petitioner institution, which were enlisted in the show cause
notice. The petitioner was, therefore, directed to show cause “as to
why action should not be taken against the school as per the penalties
laid down in Chapter 12 of the Affiliation Bye-laws, 2018” (“the
Affiliation Bye-laws”).
3. Bye-law 12.1 of the Affiliation Bye-laws deals with imposition
of penalties on schools for infraction of the bye-laws or other
applicable statutes and reads thus:
“12.1 If a School is found violating the provisions of the
Affiliation Bye Laws / Examinations Bye Laws of the Board or
does not abide by the directions of the Board, the Board shall have
powers to impose the following penalties:
12.1.1 Written warning
12.1.2 Imposing fine up to ₹ 5,00,000/-
12.1.3 Downgrading school from Senior Secondary Level
to Secondary Level
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12.1.4 Restricting number of sections in the School
12.1.5 Debarring the school from sponsoring students in
Board's examinations up to a period of two years.
12.1.6 Suspension ofAffiliation for a definite period.
12.1.7 Debarring the school from applying for affiliation or
restoration of affiliation up a period of five years.
12.1.8 Withdrawal of Affiliation in a particular subject(s) or
stream(s).
12.1.9 Withdrawal of Affiliation
12.1.10Any other penalty deemed appropriate by the
Board.”
As such, it is clear that violation of the provisions of the Affiliation
Bye-laws by a school does not ipso facto and inexorably invite
withdrawal of affiliation. There are various penalties which can be
imposed and, therefore, before the CBSE resorts to the extreme
penalty of withdrawal of affiliation, the non-negotiable legal
imperatives are that, in the first place, the school should, in the show
cause notice issued to it, be made alive to the fact that the alleged
infractions are likely to result in withdrawal of its affiliation and
should, therefore, be directed to show cause against such proposed
withdrawal and, secondly, that the order which ultimately comes to be
passed by the CBSE should also reflect conscious application of mind
that the facts of the case would merit nothing less than withdrawal of
affiliation.
4. The show cause notice dated 11 July 2023 issued to the
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petitioner in the present case does not propose withdrawal of
affiliation of the petitioner school. It merely refers to Chapter 12
without indicating the penalty that is proposed to be levied.
5. The petitioner submitted a reply to the show cause notice dated
11 July 2023.
6. By order dated 22 March 2024, the CBSE withdrew the
petitioner’s affiliation.
7. The petitioner preferred an appeal, against the said order, on 28
March 2024. This was followed by followed by further
communications dated 28 March 2024, 3 April 2024, 6 April 2024 and
18 April 2024. Among other things, these communications also raised
the issue of violation of the principles of natural justice, by pleading
that no hearing had been granted to the petitioner before its affiliation
was withdrawn.
8. As no action was being taken on the show cause notice, the
petitioner approached this Court by the present writ petition being WP
(C) 6607/2024.
9. On 9 May 2024, when the writ petition came up for hearing, the
Court and the petitioner were apprised by Ms. Manisha Singh, learned
Counsel for the CBSE, that an order had been passed by the CBSE on
7 May 2024, rejecting the petitioner’s appeal. The petitioner was,
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therefore, given an opportunity to amend the writ petition assailing the
said order.
10. The writ petition has, therefore, been amended and the prayer in
the writ petition has been modified to seek issuance of a writ of
certiorari quashing and setting aside the order dated 7 May 2024,
whereby the petitioner’s appeal was rejected.
11. I do not deem it necessary to enter into the merits of the
controversy, as the decision to withdraw the affiliation of the
petitioner, as well as to dismiss the appeal preferred by the petitioner
against the said decision cannot sustain in view of the judgment of this
1
Court in Mount Columbus School v. CBSE . In the said judgment,
this Court has taken the view that withdrawal of affiliation of a
running school is an extreme measure which subjects not only the
school, but its staff, and the students studying in the school, to serious
prejudice, and cannot be taken save and except in strict compliance
with the principles of natural justice, which included due compliance
with audi alteram partem . Paras 48 to 54 of the decision in Mount
Columbus School may be reproduced thus:
“48. The submission of Ms. Manisha Singh that the law did not
require an opportunity of personal hearing to be granted to the
petitioner is obviously unacceptable. The decision to disaffiliate an
educational institution is an extreme decision. It amounts to civil
death. It results in serious prejudice not only to the institution, its
officers and employees, but to the multitude of students who are
being educated within its portals. It is a decision to be taken,
1
2024 SCC OnLine Del 2778
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therefore, in themost extreme of cases, and after rigorous and
scrupulous adherencenot only to the procedure stipulated in that
regard, but alsoindependently with the principles of natural justice
and fair play, which would include, needless to say, compliance
with audi alteram partem .
49. Moreover, in the present case, it has to be borne in mind
that thepetitioner is an institution which was affiliated as far back
as in 2003 In such a circumstance, any decision to disaffiliate the
petitioner could not have been taken without affording the
petitioner an opportunity of personal hearing in the matter.
50. Even otherwise, it is well settled in administrative law that
a decision which entails serious civil consequences has to be
preceded by compliance with the principle of audi alterum partum,
even if the statutory provision does not expressly so required. That
the requirement of grant of an opportunity of hearing in such cases
has necessarily to be read into the statute, is the law which follows
from a long line of decisions. A Division Bench of the High Court
of Orissa felicitously expressed the principle thus, in Narayan
2
Chandra Jena v. State Transport Authority :
3
“It is true that Sec. 50 in terms does not provide for
granting an opportunity to be heard. But the audi alteram
partem rule is of universal application and law is well
settled that when a statute is silent regarding observance of
the principles of natural justice, the rule shall be read into
the statute as an inbuilt provision. The rule must be held to
be a necessary postulate in all cases where a decision is to
be taken affecting a person's rights or interest unless such
rule is specifically excluded by the relevant statute. It is
also well settled that failure to observe natural justice
cannot be justified merely because the authority vested with
the powers to decide is of the opinion that granting of such
opportunity would be an exercise in futility since the person
to be condemned can have nothing more to add. Non-
2
AIR 1987 Ori 163
3
The reference is to Section 50 of the erstwhile Motor Vehicles Act, 1939, which reads:
“ 50. Procedure of Regional Transport Authority in considering application for
contract carriage permit. – A Regional Transport Authority shall, in considering an
application for a contract carriage permit, have regard to the extent to which additional
contract carriages may be necessary or desirable in the public interest ; and shall also take
into consideration any representations which may then be made or which may previously
have been made by persons already holding contract carriage permits in the region or by
any local authority or police authority in the region to the effect that the number of contract
carriages for which permits have already been granted is sufficient for or in excess of the
needs of the region or any area within the region.
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observance of natural justice is itself a prejudice and
independent proof of prejudice due to denial of natural
justice is unnecessary.”
This, and several other pronouncements to the said effect, were
relied upon by a Division Bench of the High Court of Punjab &
Haryana (speaking through Swatanter Kumar, J., as he then was) in
4
Ram Niwa’s Bansal v. State Bank of Patiala , to hold that the
requirement of compliance with audi alteram partem is to be read
into every provision, the enforcement of which entails civil
consequences, even if the provision is itself silent in that regard,
unless the statute provides otherwise.
5
51. J.T. (India) Exports v. U.O.I . , rendered by a Full Bench
of this Court, is also relevant. Division Benches of this Court were
divergent on the issue of whether the third proviso to Section 4-M
of the Imports & Exports (Control) Act, 1947 required grant of an
opportunity of personal hearing before deciding whether to waive
penalty in full or in part. Significantly, the Full Bench noted, at the
very outset, the earlier decision of the Supreme Court in U.O.I. v.
6
Jesus Sales Corporation which, dealing with the same provision,
held that, in every case, in could not be held that failure to grant
personal hearing was fatal. Nonetheless, the Full Bench proceeded,
in paras 13 and 15 of its judgment, to hold thus, apropos that the
requirement of grant of an opportunity of hearing; thus:
“13. 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 C R 114 , that is,
'no man shall be a judge in his own cause'. Coke used the
form 'aliquis non debet esse judex inpropria causa quia non
potest esse judex at pars ' ( Co. Litt. 1418 ), that is, 'no man
4
(1999) II LLJ 126 (P & H)
5
94 (2001) DLT 301 (FB)
6
(1996) 4 SCC 69
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ought to be a judge in his own cause, 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
and that is the rule with which we are concerned in this case
is 'audi alteram partem ', that is, 'hear the other side'. At
times and particularly in continental countries, the form
' audietur at alteram 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, 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
10
have been what isright' (See Bosewell' case ): or in other
words, as it is now expressed, 'justice should no only be
done but should manifestly beseen to be done'.
14. Even if grant of an opportunity is not specifically
provided for it has to be read into the unoccupied
interstices and unless specifically excluded principles of
natural justice have to be applied. Even if a statute is silent
and there are no positive wordsin the Act or Rules spelling
out the need to hear the party whose rights and interests
are likely to be affected, the requirement to follow the fair
procedure before taking a decision must be read into the
statute, unless the statute provides otherwise. Reference is
accordingly disposed of.”
(Emphasis supplied)
52. The fact that the impugned order was passed with no
opportunity of hearing granted to the petitioner, is, therefore, an
additional circumstance which would justify its evisceration.
53. Swadeshi Cotton Mills , cited by Mr. Gupta, crystallizes
this position. Para 18 of the report noted the point that arose for
consideration, thus:
“18. Thus, the first point for consideration is whether, as a
matter of law, it is necessary, in accordance with the rules
of natural justice, to give a hearing to the owner of an
undertaking before issuing a notified order, or enforcing a
decision of its take- over under Section 18-AA11.”
The Supreme Court held:
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“25. Before dealing with the contentions advanced on both
sides, it will be useful to have a general idea of the concept
of “natural justice” and the broad principles governing its
application or exclusion in the construction or
administration of statutes and the exercise of judicial or
administrative powers by an authority or tribunal
constituted thereunder.
26. Well then, what is “natural justice”? The phrase is
not capable of a static and precise definition. It cannot be
imprisoned in the straight-jacket of a cast-iron formula.
Historically, “natural justice” has been used in a way
“which implies the existence of moral principles of self-
evident and unarguable truth”. [Paul Jackson : Natural
Justice, 2nd Edn., p 1] In course of time, Judges nurtured in
the traditions of British jurisprudence, often invoked it in
conjunction with a reference to “equity and good
conscience”. Legal experts of earlier generations did not
draw any distinction between “natural justice” and “natural
law”. “Natural justice” was considered as “that part of
natural law which relates to the administration of justice”.
Rules of natural justice are not embodied rules. Being
means to an end and not an end in themselves, it is not
possible to make an exhaustive catalogue of such rules.
27. But two fundamental maxims of natural justice have
now become deeply and indelibly ingrained in the common
consciousness of mankind, as pre-eminently necessary to
ensure that the law is applied impartially, objectively and
fairly. Described in the form of Latin tags these twin
principles are:
(i) audi alteram partem and (ii) nemo judex in re
sua . For the purpose of the question posed above,
we are primarily concerned with the first. This
principle was well-recognised even in the ancient
world. Seneca, the philosopher, is said to have
12
referred in Medea that it is unjust to reach a
7
decision without a full hearing. In Maneka Gandhi
case, Bhagwati, J. emphasised that audi alteram
partem is a highly effective rule devised by the
courts to ensure that a statutory authority arrives at
7
Maneka Gandhi v. U.O.I., (1978) 1 SCC 248
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a just decision and itis calculated to act as a healthy
check on the abuse or misuse of power. Hence its
reach should not be narrowed and its applicability
circumscribed .
28. During the last two decades, the concept of natural
justice has made great strides in the realm of administrative
law. Before the epoch-making decision of the
8
House of Lordsin Ridge v. Baldwin it was generally
thought that the rules of natural justice apply only to
judicial or quasi-judicial proceedings; and for that purpose,
whenever a breach of the rule of natural justice was alleged,
courts in England used to ascertain whether the impugned
action was taken by the statutory authority or tribunal in the
exercise of its administrative or quasi-judicial power. In
India also, this was the position before the decision, dated
9
February 7, 1967, of this Court in Dr Bina Pani Dei ;
wherein it was held that even an administrative order or
decision in matters involving civil consequences, has to be
made consistently with the rules of natural justice. This
supposed distinction between quasi-judicial and
administrative decisions, which was perceptibly mitigated
in Dr Bina Pani Dei , was further rubbed out to a vanishing
10
point in A.K. Kraipak v. Union of India , thus:
“If the purpose of the rules of natural justice is to
prevent miscarriage of justice one fails to see why
those rules should be made inapplicable to
administrative enquiries. Often times it is not easy
to draw the line that demarcates administrative
enquiries from quasi-judicial enquiries....
Arriving at a just decision is the aim of both quasi-
judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative
enquiry may have more far- reaching effect than a
decision in a quasi-judicial enquiry.”
29. In A.K. Kraipak , the court also quoted with
approval the observations of Lord Parker from the Queen's
11
Bench decision in Inre H.K. (Infants) ; which were to the
effect, that good administration and an honest or bona fide
8
1964 AC 40
9
State of Orissa v. Dr Bina Pani Dei, AIR 1967 SC 1269
10
(1969) 2 SCC 262
11
1965 AC 201
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decision require not merely impartiality or merely
bringing one's mind to bear on the problem, but acting
fairly . Thus irrespective of whether the power conferred on
a statutory body or tribunal is administrative or quasi-
judicial, a duty to act fairly, that is, in consonance with the
fundamental principles of substantive justice is generally
implied, because the presumption is that in a democratic
polity wedded to the rule of law, the State or the legislature
does not intend that in the exercise of their statutory powers
its functionaries should act unfairly or unjustly.
30. In the language of V.R. Krishna Iyer, J. (vide
12
Mohinder Singh Gill : “... subject to certain necessary
limitations natural justice is now a brooding
omnipresence although varying in itsplay ... Its essence is
good conscience in a given situation; nothing more — but
nothing less.”
31. The rules of natural justice can operate only in areas
not covered by any law validly made. They can supplement
the law but cannot supplant it (per Hedge, J. in A.K.
Kraipak ). If a statutory provision either specifically or by
inevitable implication excludes the application of the rules
of natural justice, then the court cannot ignore the mandate
of the legislature. Whether or not the application of the
principles of natural justice in a given case has been
excluded, wholly or in part, in the exercise of statutory
power, depends upon the language and basic scheme of the
provision conferring the power, the nature of the power, the
purpose for which it is conferred and the effect of the
exercise of that power. (see Union of India v. Col. J.N.
13
Sinha )
32. The maxim audi alteram partem has many facets.
Two of them are: (a) notice of the case to be met; and (b)
opportunity to explain. This rule is universally respected
and duty to afford a fair hearing in Lord Lore-burn's oft-
quoted language, is “a duty lying upon everyone who
decides something”, in the exercise of legal power. The rule
cannot be sacrificed at the altar of administrative
convenience or celerity; for, “convenience and justice” —
as Lord Atkin felicitously put it — “are often not on
12
Mohinder Singh Gill v. Election Commissioner of India, (1978) 1 SCC 405
13
(1970) 2 SCC 458
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14
speaking terms [ General Medical Council v. Spackman ]
”.
33. The next general aspect to be considered is: Are
there any exceptions to the application of the principles of
natural justice, particularly the audi alteram partem rule?
We have already noticed that the statute conferring the
power, can by express language exclude its application.
Such cases do not present any difficulty. However,
difficulties arise when the statute conferring the power does
not expressly exclude this rule but its exclusion is sought by
implication due to the presence of certain factors: such as,
urgency,where the obligation to give notice and opportunity
to be heard would obstruct the taking of prompt action of a
preventive orremedial nature. It is proposed to dilate a little
on this aspect, because in the instant case before us,
exclusion of this rule of fair hearing is sought by
implication from the use of the word “immediate” in
Section 18-AA(1). Audi alteram partem rule may be
disregarded in an emergent situation where immediate
action brooks no delay to prevent some imminent danger or
injury or hazard to paramount public interests. Thus,
Section 133 of the Code of Criminal Procedure, empowers
the Magistrates specified therein to make an ex parte
conditional order in emergent cases, for removal of
dangerous public nuisances. Action under Section 17, Land
Acquisition Act, furnishes another such instance.Similarly,
action on grounds of public safety, public health may
justify disregard of the rule of prior hearing.
34. Be that as it may, the fact remains that there is no
consensus of judicial opinion on whether mere urgency of a
decision is a practical consideration which would uniformly
justify non-observance of even an abridged form of this
15
principle of natural justice. In Durayappah v. Fernando
Lord Upjohn observed that “while urgency may rightly
limit such opportunity timeously, perhaps severely, there
can never be a denial of that opportunity if the principles of
natural justice are applicable.
35. These observations of Lord Upjohn in Durayappah
14
1943 AC 627, 638
15
(1967) 2 AC 337
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were quoted with approval by this Court in Mohinder
Singh Gill . It is therefore, proposed to notice the same here.
36. In Mohinder Singh Gill the appellant and the third
respondent were candidates for election in a Parliamentary
Constituency. The appellant alleged that when at the last
hour of counting it appeared that he had all but won the
election, at the instance of the respondent, violence broke
out and the Returning Officer was forced to postpone
declaration of the result. The Returning Officer reported the
happening to the Chief Election Commissioner. An officer
of the Election Commission who was an observer at the
counting, reported about the incidents to the Commission.
The appellant met the Chief Election Commissioner and
requested him to declare the result. Eventually, the Chief
Election Commissioner issued a notification which stated
that taking all circumstances into consideration the
Commission was satisfied that the poll had been vitiated,
and therefore in exercise of the powers under Article 324 of
the Constitution, the poll already held was cancelled and a
repoll was being ordered in the constituency. The appellant
contended that before making the impugned order, the
Election Commission had not given him a full and fair
hearing and all that he had was a vacuous meeting where
nothing was disclosed. The Election Commission
contended that a prior hearing had, in fact, been given to the
appellant. In addition, on the question of application of the
principles of natural justice, it was urged by the respondents
that the tardy process of notice and hearing would thwart
the conducting of elections with speed, that unless civil
consequences ensued, hearing was not necessary and that
the right accrues to a candidate only when he is declared
elected. This contention, which had found favour with the
High Court, was negatived by this Court. Delivering the
judgment of the Court, V.R. Krishna Iyer, J., lucidly
explained the meaning and scope of the concept of natural
justice and its role in a case where there is a competition
between the necessity of taking speedy action and the duty
to act fairly. It will be useful to extract those illuminating
observations, in extenso:
“Once we understand the soul of the rule as fair play
in action — and it is so — we must hold that it
extends to both the fields. After all, administrative
power in a democratic set-up is not allergic to
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fairness in action and discretionary executive justice
cannot degenerate into unilateral injustice. Nor is
there ground to be frightened of delay,
inconvenience and expense, if natural justice gains
access. For fairness itself is a flexible, pragmatic
and relative concept, not a rigid, ritualistic or
sophisticated abstraction. It is not a bull in a china
shop, nor a bee in one's bonnet. Its essence is good
conscience in a givensituation; nothing more — but
nothing less. The ‘exceptions’ to the rules of natural
justice are a misnomer or rather are but a shorthand
form of expressing the idea that in those
exclusionary cases nothing unfair can be inferred by
not affording an opportunity to present or meet a
case.”
37. After referring to several decisions, including the
observations of Lord Upjohn in Durayappah v. Fernando ,
the court explained that mere invocation or existence of
urgency does not exclude the duty of giving a fair hearing
to the person affected:
“It is untenable heresy, in our view, to lock-jaw the
victim or act behind his back by tempting invocation
of urgency, unless the clearest case of public injury
flowing from the least delay is self-evident. Even in
such cases a remedial hearing as soon as urgent
action has been taken is the next best. Our objection
is not to circumscription dictated by circumstances,
but to annihilation as an easy escape from a
benignant, albeit inconvenient obligation. The
procedural pre-condition of fair hearing, however
minimal, even post- decisional, has relevance to
administrative and judicial gentlemanliness....
We may not be taken to ... say that situational
modifications to notice and hearing are altogether
impermissible The glory of the law is not that
sweeping rules are laid down but that it tailors
principles to practical needs, doctors remedies to
suit the patient, promotes, not freezes, life's
processes, if we may mix metaphors. ”
38. The court further emphasised the necessity of
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striking pragmatic balance between the competing
requirements of acting urgently and fairly, thus:
“
“Should the cardinal principle of ‘hearing’ as
condition for decision-making be martyred for the
cause of administrative immediacy? We think not.
The full panoply may not be there but a manageable
minimum may make- do.
16
In Wiseman v. Borneman there was a hint of the
competitive claims of hurry and hearing. Lord Reid
said: “Even where the decision has to be reached by
a body acting judicially, there must be a balance
between the need for expedition and the need to give
full opportunity to the defendant to see material
against him .”
(emphasis added)
We agree that the elaborate and sophisticated
methodology of a formalised hearing may be
injurious to promptitude so essential in an election
under way. Even so, natural justiceis pragmatically
flexible and is amenable to capsulation under the
compulsive pressure of circumstances. To burke it
altogether may not be a stroke of fairness except in
very exceptional circumstances.”
The court further pointed out that the competing claims of
hurry and hearing can be reconciled by making situational
modifications in the audi alteram partem rule:
“(Lord Denning M.R., in Howard v. Borneman,
summarised the observations of the Law Lords in
this form.) No doctrinaire approach is desirable but
the court must be anxious to salvage the cardinal
rule to the extent permissible in a given case. After
all, it is not obligatory that counsel should be
allowed to appear nor is it compulsory that oral
evidence should be adduced. Indeed, it is not even
imperative that written statements should be called
for disclosure of the prominent circumstances and
asking for an immediate explanation orally or
16
1971 AC 297
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otherwise may, in many cases be sufficient
compliance. It is even conceivable that an urgent
meeting with the concerned parties summoned at an
hour's notice, or in a crisis, even a telephone call,
may suffice. If all that is not possible as in the case
of a fleeing person whose passport has to be
impounded lest he should evade the course of justice
or a dangerous nuisance needs immediate
abatement, the action may be taken followed
immediately by a hearing for the purpose of
sustaining or setting aside the action to the extent
feasible. It is quite on the cards that the Election
Commission, if pressed by circumstances may give
a short hearing. In any view, it is not easy to
appreciate whether before further steps got under
way he could have afforded an opportunity of
hearing the parties, and revoke the earlier directions.
All that we need emphasize is that the content of
natural justice is a dependent variable, not an
easy casualty.
Civil consequences undoubtedly cover infraction of
not merely property or personal rights but of civil
liberties, material deprivations and non-pecuniary
damages. In its comprehensive connotation
everything that affects a citizen in his civil life
inflicts a civil consequence.”
(emphasis added)
39. In Maneka Gandhi , it was laid down that where in
anemergent situation, requiring immediate action, it is not
practicableto give prior notice or opportunity to be heard,
the preliminary action should be soon followed by a full
remedial hearing.
40. The High Court of Australia in Commissioner
17
of Police v. Tanos held that some urgency, or necessity of
prompt action does not necessarily exclude natural justice
because a true emergency situation can be properly dealt
with by short measures. In Heatley v. Tasmanian Racing
18
& Gaming Commission the same High Court held that
17
(1958) 98 CLR 383
18
14 Aus LR 519
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without the use of unmistakable language in a statute, one
would not attribute to Parliament an intention to authorise
the commission to order a person not to deal in shares or
attend a stock exchange without observing natural justice.
In circumstances of likely immediate detriment to the
public, it may be appropriate for the commission to issue a
warning-off notice without notice or stated grounds but
limited to a particular meeting, coupled with a notice that
the commission proposed to make a long-term order on
stated grounds and to give an earliest practicable
opportunity to the person affected to appear before the
commission and show why the proposed long-term order
be not made.
41.As pointed out in Mohinder Singh Gill v. Chief
Election Commissioner and in Maneka Gandhi v. Union
of India such cases where owing to the compulsion of the
fact-situation or the necessity of taking speedy action, no
pre-decisional hearing is given but the action is followed
soon by a full post-decisional hearing to the person
affected, do not, in reality, constitute an“exception” to the
audi alteram partem rule. To call such cases an “exception”
is a misnomer because they do not exclude “fair playin
action”, but adapt it to the urgency of the situation by
balancing the competing claims of hurry and hearing.
42. “The necessity for speed”, writes Paul Jackson:
“may justify immediate action, it will, however, normally
allow for a hearing at a later stage”. The possibility of such
a hearing — and the adequacy of any later remedy should
the initial action prove to have been unjustified — are
considerations to be borne in mind when deciding whether
the need for urgent action excludes a right to rely on natural
justice. Moreover, however, the need to act swiftly may
modify or limit what natural justice requires, it must not be
thought “that because rough, swift or imperfect justice only
is available that there ought to be no justice”: Pratt v.
Wanganui Education Board .
43. Prof. de Smith, the renowned author of
Judicial Review (3rd Edn.) has at p. 170, expressed his
views on this aspectof the subject, thus: “Can the absence
of a hearing before a decision is made be adequately
compensated for by a hearing ex post facto? A prior hearing
may be better than a subsequent hearing, but a subsequent
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hearing is better than no hearing at all; and in some cases
the courts have held that statutory provision for an
administrative appeal or even full judicial review on the
merits are sufficient to negative the existence of any
implied duty to hear before the original decision is made.
The approach may be acceptable where the original
decision does not cause serious detriment to the person
affected, or where there is also a paramount need for
prompt action, or where it is impracticable to afford
antecedent hearings.”
44. In short, the general principle – as distinguished
from an absolute rule of uniform application – seems to be
that where a statute does not, in terms, exclude this rule of
prior hearing but contemplates a post-decisional hearing
amounting to a full review of the original order on merits,
then such a statute would be construed as excluding the
audi alteram partem rule at the pre- decisional stage.
Conversely, if the statute conferring the power is silent with
regard to the giving of a pre-decisional hearing to the
person affected and the administrative decision taken by the
authority involves civil consequences of a grave nature, and
no full review or appeal on merits against that decision is
provided, courts will be extremely reluctant to construe
such a statute as excluding the duty of affording even a
minimal hearing shorn of all its formal trappings and
dilatory features at the pre-decisional stage, unless, viewed
pragmatically, it would paralyse the administrative progress
or frustrate the need for utmost promptitude. In short, 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. But, to recall the words of
Bhagwati, J., the core of it must, however, remain, namely,
that the person affected must have reasonable opportunity
of being heard and the hearing must be a genuine hearing
and not an empty public relations exercise.”
(Italics in original; underscoring supplied)
54. Compliance with the audi alteram partem requirement is,
therefore, non-negotiable. In rare cases, and where administrative
exigencies or considerations of expedience absolutely proscribe
grant of a pre-decisional hearing, an immediate post-decisional
hearing may suffice. That, however, is clearly the exception, and
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cannot be used as an escape route to avoid granting a pre-
decisional hearing. Where, therefore, the situation is not so
emergent as would justify the hearing to be deferred to the post-
decisional stage, the decision, if it entails civil consequences and
has not been preceded by a hearing, is vitiated in its entirety. The
only exception is where the statute expressly excludes the
requirement of grant of a hearing.”
28. In these circumstances, Ms. Manisha Singh, with commendable
fairness, submits that the Court may dispose of the matter in the light
of the judgment in Mount Columbus School , but reserve the right
with the CBSE to proceed against the school, if so advised. The Court
appreciates the fair stand taken by Ms. Manisha Singh.
29. In these circumstances, following the afore-extracted passages
from the decision in Mount Columbus School , the impugned order
withdrawing provisional affiliation of the petitioner, and the order
dated 7 May 2024 rejecting the appeal filed by the petitioner
thereagainst, stand quashed and set aside. The provisional affiliation
granted to the petitioner stands restored.
30. Needless to say, however this order shall not curb the CBSE
from proceeding against the petitioner if so advised in accordance
with law and the decisions of this Court in that regard.
31. The writ petition stands allowed to the aforesaid extent, with no
order as to costs.
CM APPL. 27518/2024 (stay) and CM APPL. 31126/2024
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(amended WP (C) 6607/2024 to be taken on record)
32. These applications do not survive for consideration and stand
disposed of.
C.HARI SHANKAR, J
MAY 22, 2024
rb
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