Introduction:
The Concept of Post-Decisional Hearing has been developed over time to establish a proper balance between the Efficiency of the Administration and the Fairness to Individuals.[i] Pre-Decisional Hearing is the Hearing before the passing of a Decision/ Judgment while Post-Decisional Hearing is the hearing by the authorities after the pronouncement of the decision (Provisional). The idea of Post-Decisional Hearing provides an opportunity to be heard after the Provisional Decision has been taken by the authorities.
In Post-Decisional Hearing, one of the most essential points is that the authorities must take only a Tentative Decision and not a Final Decision without hearing the concerned party.[ii] The objective behind this is that after the Final Decision, it becomes highly rigorous for the authorities to reverse its decision and the motive of providing a fair hearing gets defeated and thus it becomes less effective than a Pre-Decision Hearing (similar proposition was held by the Apex Court).[iii]
Right to be Heard: Audi Alteram Partem
Natural Justice governed by the Rule of Audi Alteram Partem is the Essential Soul of the Impartial and Unbiased Court Rulings. Right to be Heard is the major and imperative element of the Principle of Natural Justice. The Jurisprudence to this Principle is to provide an equal opportunity to the accused in order to defend himself. It is interesting to note that although it is the duty of the Administration to provide its citizen with a Right to Fair Hearing, still it is not considered as a Fundamental Right.[iv] It has been stated by the Apex Court that the Principles of Natural Justice are not rigid, immutable but are flexible in nature.[v]
Time to Time, the Standards of Natural Justice has been developed by the Judicial Body to control the activity of the Regulation of Power with the goal that it doesn’t prompt the discretion of the despot’s ruthless use of power. Audi Alteram Partem has emerged phenomenally by the establishment of the concept of Post-Decisional Hearing.
In the case of Ridge v. Baldwin[vi] (also referred as the be all and end all of Natural Justice), a Constable was accused of Conspiracy which was followed by Prosecution by the authorities. In the end, he was acquitted of the blame and was not found guilty. The Appellate Court held that the Committee which had expelled the constable from his job as a result of the remarks made by the judge against his character was performing the Administrative and Judicial or Quasi-Judicial Power and thus the Principle of Natural Justice did not fit there. This decision was soon reversed by the House of Lords by a 4:1 majority and the order of dismissal was, therefore, not upheld.
Development of Post Decisional Hearings
The Principle of Post-Decisional Hearing was established by the Supreme Court in the case of Maneka Gandhi v. Union of India.[vii] This case is considered to be the Landmark case in introducing the concept of Post-Decisional Hearing in the Indian Legal Jurisprudence. In this case[viii] the Passport of the Petitioner (Journalist by Profession) was seized by the Government of India in the light of a legitimate concern for public well-being. The Petitioner was not given any chance before making the impugned move. When the legitimacy of the impoundment request was checked, the Government battled that the use of Audi Alteram Partem Rule would have gone against the very reason of seizing the passport. Although, the Supreme Court dismissed the conflict and acknowledged the Principle of Post-Decisional Hearing in instances of outstanding nature. The Supreme Court held in this case that if in the interest of General Public, Quick Action was Fundamental and it is impractical to manage the cost of a hearing before the decision, it is ought to be managed after the decision.[ix]
A Similar method was used by the Supreme Court in the case of Swadeshi Cotton Mills v. Union of India[x] where a void administrative choice was approved by the Post-Decisional Hearing. Here, the Court validated the order which was passed by violating the principle of Audi Alteram Partem and was found to be attracted by necessary implications as the government agreed to give the Post-Decisional Hearing.
Further, the case of K.I. Shephard v. Union of India[xi] reflects the views of the Apex Court on this principle. Here, in the terms of the Banking Regulation Act, a request was issued to amalgamate few banks with some Nationalized Banks. Pursuant to this scheme, several employees were excluded from employment and their services were not taken over. Some of the employees who were excluded filed a Writ Petition under Article 226 before the High Court where the relief was a grant by proposing the Post-Decisional Hearings.
The Extent of Validity of Hearing at Appellate Stage
In one of the cases of Leary v. National Union of Vehicle Builders, the court ordered the expulsion of a member without observing the Principle of Natural Justice. At the initial stage, the importance was given more to the Pre-decisional Hearing but later as time passed, changes started emerging and from the case of Calvin v. Carr, the Court started giving importance to Post-Decisional Hearing and this Principle was also started being followed in India.
In Institute of Chartered Accountants of India v. L.K. Ratna & Ors.[xii], it was laid down that a Post-Decisional Hearing cannot be an effective substitute for a Pre-Decisional Hearing and if an opportunity of hearing is not given before a decision is taken at the initial stage, it would result in serious prejudice in as much as if an opportunity is provided at the appellate stage, the person is deprived of his right to appeal.
Further in the case of K.K.Baskaran v. State[xiii], the Apex Court held that Under Section 3 & 4 of the Tamil Nadu Act, certain properties can be attached, and there is also provision for interim orders for attachment after which a post decisional hearing is provided for. The court said that in their views, this is valid in the view of prevailing realities.
In the case of Rasila S. Mehta v. Custodian, Nariman Bhavan[xiv], merely there was no provision for Pre-Decisional Hearing does not lead to the inference of the violation of the Principle of Natural Justice. The Court provided for sufficient Post-Decisional Hearing Opportunity in order t follow the Principle of Natural Justice.
Application
In the case of Canara Bank v. V.K. Awasthi[xv] the Respondent was issued a Show cause Notice and was given 15 days to reply. However, the Respondent failed to reply on the given time and thus was terminated from the service. The Respondent contended that the Principle of Natural Justice was not followed and the High Court upholding the said contention ordered the bank to provide proper hearing The Bank moved to the Supreme Court. The Respondent was provided with a personal hearing by the bank before the appellate authority. The issue concerning this case was whether Post Decisional Hearing before the appellant authority is in concurrence with Audi Alteram Partem or not. The Apex Court Relying on the decision of Charan Lal Sahu v. Union[xvi]where the court held ‘Post-decisional hearing can obliterate the procedural deficiency of a Pre-decisional hearing. Hence, if there is any lack in the proceedings of any case, then it can be resolved by using the Post-Decisional Hearing. Therefore, the court held that in the present case Post-Decisional Hearing serves the purpose of Pre-Decisional Hearing.
Further, the application of Post-Decisional Hearing was not appreciated where the issue was in relation to Elections and Representation of People’s Act. It was witnessed in the case of Arun Tyagi v. Election Commission of India & Anr [xvii]and Naresh Tyagi & Ors. v. Election Commission of India[xviii], where the issue was regarding the deletion of a voter’s name from the Electoral Roll, the court ruled out the application of Post-Decisional Hearing.
Conclusion
The Concept of Post-Decisional hearing is not a protector or a Hard and Fast Rule which can be applied in all cases. In the situation where Pre-Decisional Hearings fails, the Post-Decisional hearings come into action. It varies from fact to fact and case to case. There have been many cases where the court allowed a Post-decisional hearing as Pre-decisional hearing did not appear to be feasible while in several cases the court did not allow post-decisional hearings where pre-decisional hearings could have been given.
The concept of post-Decisional hearing is not something which can be disregarded or discouraged but in the coming time, it can be adopted to check the administrative fairness at its best. It must be considered as an exceptional Rule to secure Justice in extreme conditions. Also, the Presence of this Principle must bind the authorities to abide by the Principle of Natural Justice in the best possible way and lead the Judicial System to be unbiased and impartial in the coming future as well.
References:
[i] I.P.Massey, Administrative Law, (6th edition 2005).
[ii] M P Jain & S C Jain, Principles of Administrative Law ( 5thedition, 2007)
[iii] 8Yoginath D. Bagde v. State of Maharashtra, (1997) 7 SCC 739.
[iv] Union of India v. J.N. Sinha 1971 SCR (1) 791.
[v] K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 at 285.
[vi] Diva Rai, Doctrine of Post Decisional Hearing (August 5, 2020) available at: https://blog.ipleaders.in/the-doctrine-of-post-decisional-hearing/#Meaning_of_the_term_Post-Decisional_Hearing
[vii] 1978 SCR (2) 621.
[viii] Diva Rai, Doctrine of Post Decisional Hearing (August 5, 2020) available at: https://blog.ipleaders.in/the-doctrine-of-post-decisional-hearing/#Meaning_of_the_term_Post-Decisional_Hearing
[ix] Diva Rai, Doctrine of Post Decisional Hearing (August 5, 2020) available at: https://blog.ipleaders.in/the-doctrine-of-post-decisional-hearing/#Meaning_of_the_term_Post-Decisional_Hearing
[x] 1981 SCR(2) 533
[xi] (1987) 4 SCC 431
[xii] AIR 1987 SC 71
[xiii] (2011) 3 SCC 793
[xiv] (2011) 6 SCC 220
[xv] (2005) 6 SCC 321
[xvi] AIR 1990 SC 1480
[xvii] LPA No.2/2011
[xviii] 8WP(C) No.5064 of 2013
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