Whether order passed in violation of principles of natural j
Shree.
(Querist) 07 July 2009
This query is : Resolved
Whether order passed in violation of principles of natural justice is void ab-initio?
n.k.sarin
(Expert) 07 July 2009
MrShree,if any court pass any order whether in violation of principles of natural justice or not and order remain unchallenged.Order is not void
Kiran Kumar
(Expert) 07 July 2009
well to my knowledge in A.R. Antulay v/s R.S Nayak in 1988-89 SC held that any action in violation of the principles of natural justice is a nullity.
latest law has to be seen here.
its no doubt true that if such an order is challenged and the petition is allowed then the impugned/ quashed order will be termed as void ab-initio.
N.K.Assumi
(Expert) 08 July 2009
Shree, what is the nature of the Order? Is it ministerial order, Quasi judicial order or Judicial order? is there any statues/Rules or Regulation? that speak about compliance of natural justice?
Uma parameswaran
(Expert) 08 July 2009
yes. Natural justice means justice brings out from reasonable, just and fair hearing with out arbitrary exercise of power. With out complying natural justice an order could not put into effect.
Swami Sadashiva Brahmendra Sar
(Expert) 08 July 2009
violation of the natural justice is a Vague and wide allegation . In many cases the supreme court has held that an order is not bad merely on the ground of violation of natural justice unless, the aggrieved person shows that a prejudice has been caused to him by non observance of natural justice.
SANJAY DIXIT
(Expert) 14 July 2009
Guidelines by Supreme Court:
State Bank of Patiala vs. S.K. Sharma,
AIR 1996 SC 1669 : 1996 (2) SLR SC 631
In above case Supreme court laid down guidelines regarding "Violation of Principles of Natural Justice":--
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary / departmental enquiry in violation of the rules / regulations / statutory provisions governing such enquiries should not be set aside automatically. The court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) it is procedural in character.
(2) A substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer / employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz, whether such violation has prejudiced the delinquent officer / employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and / or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. It may be remembered that there may be certain procedural provisions which are of fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. In a case where there is a provision expressly providing that after the evidence of the employer / government is over, the employee shall be given an opportunity to lead defence in his evidence and the enquiry officer does not give that opportunity inspite of the delinquent officer / employee asking for it, the prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e. whether the person has received a fair hearing considering all things. Now this very aspect can also be looked at from the point of view of directory and mandatory provisions. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In case of procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer / employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (including the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunaker. The ultimate test is always the same, viz. test of preju
