Audi Alteram Partem

Right of personal hearing to a person against whom an adverse order is to be made is to be equated with a fundamental right and an adverse order made without affording opportunity of personal hearing is to be treated as a void order

If principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in absence of departure from these essential principles of natural justice

Decision taken in violation of principles of natural justice must be declared to be no decision

Violation of principle of audi alteram partem (no one should be condemned unheard) would be enough to vitiate even the most solemn proceedings

This principle has originated from the Islamic principles of justice.

Principle 'audi alteram partem' is attracted only in a case where the opportunity of hearing is not afforded by the Court to a party to the proceedings in spite of the fact that the party was present before the Court or was absent but was not properly served in accordance with law

Principle shall not apply in a case where the party, despite proper service of notice and opportunity granted by the Court, chooses to remain absent, or appears either personally or through counsel and then deliberately abstains itself from participating in the proceedings.

To ensure the principle of fairness embedded in the right of hearing, the person sought to be affected must at least be made aware of the allegations made against him, upon which basis the decision is to follow, (i.e., notice of the case to be met) and, second, be given a fair opportunity to make any relevant statement putting forward his own case, and to correct or controvert any relevant statement brought forward to his prejudice (i.e., opportunity to explain)

In order to act justly and to reach at just ends by just means, a deciding authority is to comply with and implement, in all circumstances, these elementary and essential requirements of principle of fairness and right of hearing.

Even in absence of any express provision in the statute, the principle of audi alteram partem is to be read into the relevant provision and applies in proceedings where adverse action is being considered to be taken against a person or if the contemplated action is going to affect any of his vested rights

Violation of this principle vitiates the proceedings and makes the action taken therein to be illegal, as the violation of said principle is considered as a violation of law.

Petitioners (manufacturers of textiles/allied products) alleged that they had approached the Oil and Gas Regulatory Authority (OGRA) but of no avail, they filed Constitutional petition (first petition) which was disposed of on 1.2.2017 by High Court directing OGRA to rehear the petitioner treating the copy of petition as review and decide the same within 6 weeks; and, subject to deposit of surety bonds by petitioners, continue to issue sui gas bills to the petitioners on basis of year previous to the year of controversy

OGRA dismissed such review petition on 06/07/2020

Petitioners contended that notice issued by the respondents (Authorities) was not properly delivered to the petitioners; that decision was made without hearing the petitioners; and that one opportunity of hearing should be provided before finalizing the matter

Held, that the OGRA would rehear the petitioners' grounds and decide the same afresh within 30 days

High Court also directed the petitioners to deposit Rs.01 million with the respondent within 7 days

Constitutional petition was dismissed accordingly.

Requirement of audi alteram partem is not confined to proceedings before Courts but it extends to all proceedings by whomsoever held, which may affect a person or property or other rights of the parties concerned in dispute.

Even if it was accepted that a notice was sent to the employees, ex facie the same was deficient and did not properly satisfy the test of what constituted a valid show-cause notice

Employees were, at the very least, to be properly confronted with the allegations as to the invalidity of their appointments so as to be able to properly respond thereto, under the given circumstances of the case they did not appear to have been extended such an opportunity, which militated against the well settled principles of natural justice, enshrined in the maxim audi alteram partem

Termination orders were set aside with direction to the respondents to process the cases of the petitioners afresh

Constitutional petitions were disposed of accordingly.

Order without notice is void because an act performed in disregard of the provisions of the statute and any further action taken on the basis of such void order would also be vitiated and the defects at the initial stage would be incurable by a hearing at a subsequent stage.

Where allotment in favour of the petitioners' predecessor was cancelled without any notice, High Court observed that due process of law had not been adopted which was a gross violation of the constitutionally guaranteed Fundamental Right No. 19 i.e. Right to fair trial, Right No. 14 protection of property and Right No. 1 security of person

Impugned order was set aside and the writ petitions were accepted.

Principle of audi alteram partem i.e. providing an opportunity to the concerned party calling explanation before proceeding adversely against the person is a well-established norm and established principle of natural justice.

Requirement of the principle audi alteram partem is not confined to proceedings before Courts but it extends to all proceedings, by whomsoever held, which may affect a person or property or other rights of the parties in dispute

Principles of natural justice must be read each and every statute unless and until prohibited by the statute

Even if there is no provision as to issuance of notice of personal hearing to the affected party in a statute, it cannot override the principle of natural justice and an opportunity of a hearing has to be provided to the affected party.

Maxim was applicable to judicial, quasi-judicial and non-judicial proceedings.

Opportunity to make representations would be effective only if it related to the decision to be made and if this was made clear to the affected parties.

When a statute was silent regarding observance of principles of natural justice, said rule would be read into the statute as inbuilt provision

Rule must be held to be a necessary postulate in all cases, where a decision was to be taken affecting a person's rights or interest, unless such rule was specifically excluded by the relevant statute

Failure to observe principles of natural justice, could not be justified, merely because the Authority vested with the power to decide, was of the opinion that to grant such opportunity would be an exercise in futility

Non-observance of principles of natural justice, was itself a prejudice

No person, including Revenue Department, would be saddled with a prejudicial order without being heard

Doctrine of natural justice was to be extended when any prejudicial action was taken without being heard

Principles of natural justice did not supplant the law, but merely supplement the law or even harmonise it

If a statutory provision could be read consistent with the principles of natural justice, the court could do so, for the Legislature was presumed to intend to act according to the principles of natural justice.

Scope.

Maxim would be applicable to all judicial and non-judicial proceedings and would be read into every statute, even if right of hearing was not expressly provided therein.

Maxim `Audi alteram partem' was to be read in' every statute more particularly when the right was affected by impugned order.

No evidence can be used against the assessee at his back.

Principle of audi alteram partem is applicable to judicial as well as non judicial proceedings and it is read in every statute as its part if right of hearing has not been specifically provided therein.

Discretion to deprive a person of his property has to be exercised in a judicial manner having regard to the legal maxim "audi alteram partem" (nobody should be condemned unheard) and the person affected has to be served with a notice to show cause before any action is taken against him.

Under principle 'Audi alteram partem', enshrined in our judicial system, order affecting the right of a party could not be passed without providing opportunity of hearing to that party

Such principle would be read into relevant law unless its application was excluded by express words.

Authorities had passed order of cancellation of plots after the same had been allotted and subleases had been executed in favour of the petitioners

No notice was issued to the petitioners before passing of order of cancellation of the allotments

­Validity

Principle of natural justice enshrined in audi alteram partem had been violated in circumstances.

Principle enshrined in maxim "Audi alteram partem" has to be applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings.

Principle enshrined in maxim "Audi alteram partem" has to be applied in all judicial and non judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings.

Audi Alteram Partem ”Ignorantia praesumitur ubi scientia non probatur" (ignorance is presumed where knowledge is not proved) and "lex neminem cogit ostendere qued nescire praesumitur" (law compels no one to divulge that which he is presumed not to know)

Applicability

Where the petitioner was minor at the time when all the actions had been taken against him, such actions would be presumed to have been taken without his knowledge

Minor was not supposed nor presumed to be in the knowledge of all those actions

Maxims "ignorantia praesumitur ubi scientia non probatur" (ignorance is presumed where knowledge is not proved) and "lex neminem cogit ostendere qued nescire praesumitur" (law compels no one to divulge that which he is presumed not to know) were applicable in circumstances.

“Audi alteram partem " (no person shall be condemned unheard) is not confined to only judicial proceedings but extends to all proceedings affecting person or property of a party

Mere absence of provision as to notice in the statute cannot override the principle of natural justice which shall be presumed to be embodied in a statute in absence of any provision to the contrary.

Candidates for admission were the real contesting parties, and to safeguard their individual interest, they had also challenged the entitlement of the rival candidates

Fate of such rival candidates could not be decided without affording them an opportunity of being heard.

Employer, who itself hid framed Rules as well as Regulations for its domestic purposes, was bound to strictly 'follow/adhere to the same

Deviation from such Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i.e. no one is to be condemned unheard

Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action.

Applicability. Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Farooq H. Naek, Senior Advocate Supreme Court instructed by Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in Crl.A. No. 102 of 1999).

Principle of natural justice as enshrined in maxim "audi alteram partem" i.e. no one should be condemned unheard, is considered impliedly or expressly integral part of a statute

Even administrative/executive Authorities are required to adhere to the principle but At the same time it is not a principle which is recognized universally

Subject to nature of proceedings arid category of the action contemplated to be taken against an individual said rule can be extended or denied.

Right of an opportunity of hearing before an order is passed against a person shall be deemed to be written in every statute even if there is no express provision to that effect.

Rule of audi alteram partem -is universally respected and the same cannot be sacrificed at the altar of administrative convenience or celerity, for convenience and justice.

No one should be condemned unheard.

Conditions and exceptions.

Availability and utilization of subsequent opportunity of hearing washes away the initial lack of such opportunity before a forum below.

Contentions were that order of the Supreme Court passed under Art. 184(3) of the Constitution was not only violative of the provisions of S.302(b)(c), P.P.C. but the Court had also misconstrued Ss.302(a). 306(c) 307 & 308, P.P.C. and petitioner who was father of the deceased and was also complainant in the case of murder of her daughter was not made a party to the proceedings culminating in the impugned judgment which omission was not only against the Injunctions of Islam but was also violative of Art.25 of the Constitution which guaranteed equality before law of all citizens and equal protection of law to them; that principle of natural justice had been offended on account of petitioner having been deprived of right of hearing and that impugned judgment had been passed without due notice to the complainant of the proceedings. which affected his right also, as was coram non judice

Validity

Order having been passed without the impleadment of the petitioner who was father of the deceased and had also lodged the F.I.R. and was, thus, the complainant was violative of Art.25 of the Constitution

Maxim "audi alteram partem" (no man should be condemned unheard) was not confined to proceedings which were judicial in form but extended to all proceedings, by whomsoever held, which may affect the person or property of other rights of the party concerned in the dispute

Complainant and Wali in case of murder and hurt to body was a necessary party both in the case involving Qisas or Tazir

Petitioner/complainant, therefore, was entitled to be impleaded as a party to the proceedings before Supreme Court and should not have been condemned unheard

Impugned order of the Supreme Court, therefore, would be coram non judice in circumstances.

Origin and concept of principles of natural justice.

Maxim "audi alteram partem" i.e. no one should be condemned unheard, was a universally established principle of law which was applicable to both judicial and non judicial proceedings

Legislature being cognizant of said principle had incorporated same in Sales Tax Act, 1990 in various provisions of the Act, relating to adjudication of cases

No order affecting rights of a person should be passed without providing him opportunity of being heard.

Leave to appeal was refused in circumstances. -[Maxim].

Civil servant s name was included in the list of those civil servants who were required to be removed from service without affording opportunity of hearing to them

Authorities had already made up their mind to dismiss civil servant alongwith others from service

Such plea of civil servant was not, at all, contested by Authorities

Civil servant was, thus, condemned unheard which was against the spirit of natural justice contained in maxim "audi alteram partem"

Impugned order of dismissal was thus, mala fide, coram non judice and without jurisdiction on the face of it

High Court was right in holding that civil servant was dismissed from service with predetermined mind and also without giving him opportunity of hearing

Command issued by concerned Authority to Special Tribunal to dismiss civil servants mentioned Yin said list without providing them adequate opportunity of hearing, was thus mockery of civilized judicial system

Order of dismissal was, therefore, not sustainable in law on any ground whatsoever

Judgment of High Court whereby order of dismissal of civil servant was declared to be mala fide, coram non judice and without jurisdiction was maintained by Supreme Court

Petition for leave to appeal was also barred by 32 days for which no satisfactory explanation had been given for condonation of delay

Leave to appeal was refused on merits as also being barred by limitation

Reversal of petitioner, an examinee, from first position to that of second without opportunity of being heard having been granted to him

Effect

Petitioner was shown to have been placed at position No. 1 in F.Sc. Examination of the Board and such result had been communicated to the Press

Respondent, a brother of official of Intermediate and Secondary Board was subsequently shown to have secured first position while petitioner was relegated to second position, without affording him opportunity of being heard

Validity

Petitioner having been once declared to have secured first position, was vested with valuable right which had entitled him to first prize and Gold Medal. therefore, same could not have been withdrawn from him without giving him opportunity of being heard

-Principle of "audi alteram partem" was fully applicable to such case. therefore, relegation of petitioner from first position to that of second on such legal ground alone was not sustainable

Official notification declaring petitioner to have secured first position had, however, not been rescinded till hearing of Constitutional petition

High Court directed that petitioner be awarded medal/award in which he had achieved first position in his group of studies.

/Educational institution.

Provision of S. 7(2), Industrial Relations Ordinance, 1969, although does not contain provision of giving notice to employer, yet without notice such registration would be contrary to principle of natural justice

Even where notice was not specifically provided in any statute, before taking action, it must be read into every law unless its issuance was specifically barred

Registration of employees union would be faulty where same was registered without giving opportunity of hearing to employer

Where employees Union was registered on 5-10-1995 while notice was issued to employer on 15-11-1995, such notice being subsequent event could not be deemed, to be estoppel

Grant of certificate of registration to employees union was, thus, violative of principle of audi alteram partem.

In absence of statutory rules, employee of Corporation would be purely governed by the principle of Master and Servant and resort could not be had by him to Constitutional jurisdiction of High Court in case of any infraction of such rules

Such principle, however, could not apply in case of any infringement of law

Principle embodied in maxim "audi alteram partem" (no person should be condemned unheard) would be applicable to judicial as well as non judicial proceedings and same must be read as part of every statute

No reasons were assigned by Authority while terminating services or in some cases although reasons were assigned, yet no opportunity of hearing was afforded to any. of petitioners

Effect

Termination of employment could not be called simpliciter, for when no reasons were assigned, it could justifiably be assumed that employment was terminated for extraneous reasons

Initial appointment of petitioners although was said to be irregular but no opportunity of hearing was afforded to them before termination of their employment

Entire action was, therefore, taken in violation of law without observing principles of natural justice

Termination of employment of petitioners was declared to be without lawful authority and of no legal effect

Authority, however, would have option to take fresh action in accordance with law if it so desired.

Fact that there were no statutory rules in employer's firms and its relationship with its employees was that of master and servant would not negate the maxim "audi alteram partem" which was in consonance with principles of natural justice and Islamic Injunctions and the same would apply to judicial as well as to non judicial proceedings

Principles of natural justice are to he read and understood as part of every statute if right of hearing had not been expressly provided thereto.

Leave to appeal was refused in circumstances.

Before any order was passed affecting right and privilege of any person, it would be necessary to hear him and provide him opportunity of contradicting any material point or circumstances which was sought to be produced against him.

Principles of natural justice requiring hearing to be granted to concerned person before being condemned would apply not only to judicial but also quasi-judicial proceedings provided that application thereof, was nor specifically excluded by relevant statute.

An order without jurisdiction does not create any vested right and does not entitle person concerned to claim personal hearing.

Authority, could not advance satisfactory reasons for not effecting service upon her place of service through Principal of College or adopting substituted service

Authority, held, violated principle of audi alteram partem, which was not only applicable to judicial proceedings but was also applicable to executive orders.

Regulation 20-A, Punjab University Calendar was based on principle of audi alteram partem which required that before taking proposed action against affected person opportunity of showing cause must be afforded to that person

Petitioner was not offered any opportunity to plead his innocence with regard to allegations on which he was disqualified

Earlier notices did not contain any specific allegation against petitioner

Specific allegation against petitioner was that he had cheated by impersonation; yet it was University's case that petitioner's twin brother impersonated the petitioner which was, thus, complete reversal of charge against petitioner

Impugned order was not speaking order but cryptic order not disclosing any reason . whatsoever

Complainant was not examined and complaint itself was anonymous

No direct evidence was led against petitioner, no documents were shown to him, even Handwriting Expert was not examined, therefore, reasonable opportunity of defending himself was not given to the petitioner

Order of disqualification passed by University Authorities against petitioner, debarring him to appear in any University examination for a period of three years was set aside in circumstances.