1. Answer the hypothetical question in the light of principles of natural justice.

The purpose of following the Principles of natural justice is to prevent miscarriage of justice.
These principles are the firsthand procedural safeguards which the Courts use to invalidate
any action of Legislative action. These have been considered to be the ‘foundational and
fundamental concepts’. In AK. Kraipak v. Union of India, the Hon’ble Supreme Courte
extended the applicability of principles of natural justice to administrative actions as well.
The rationale behind it was these principles aim at securing justice. This landmark judgment
also widened the scope of right of fair hearing. Natural Justice comprises of two basic
principles:

Doctrine of Audi Alteram Partem: It means hear the other party. It also imbibes within it the
right of fair hearing.

Rule against bias (Nemo Judex in Causa Sua): It means that a decision taken should be free
from any kind of prejudice or favourable treatment.

In the given situation, the principle of natural justice to be applied is the ‘right of fair
hearing’. A hearing which takes place before a decision is arrived at by the decision-making
authority is referred to as 'pre-decisional' hearing. Whereas a hearing held after a tentative
decision is taken is referred to as a 'post-decisional' hearing.

2. Discuss the concept along with the landmark cases on the concept.

In order to substantiate the view point that has been taken, it is pertinent to make a reference
to the case of H.L. Trehan v. Union of India decided by the Hon’ble Supreme Court in the
year 1988. The said judgment squarely applies to the given situation as it was also decided on
similar facts.

In H.L. Trehan case also, Chairman of Board of Directors of one Government company
which is “CORIL” issued a circular for the rationalisation of perquisites and allowances
admissible to Management Staff. This circular was put to challenge by a few of the
employees of the company as it adversely affected them.

The employees raised several contentions, inter alia, that since they were deprived of any
opportunity of being heard, the impugned circular which altered the terms and condition of
employment to their prejudice, be considered void. This violated the principles of natural
justice.

The Hon’ble Supreme Court conceded with the submission made by the employees. That
right of government servant cannot be curtailed without complying with the principles of
natural justice. If an arbitrary action is taken without such compliance, then it will go to
infringe Article 14. That post-decisional hearing does not serve the purpose. When a post
decisional hearing is provided, the authority will not be open to incorporate the suggestions,
representation or objections it may receive. The authority will suffer from the likeliness of
upholding the decision .

Base on the above principles, the Hon’ble Supreme Court decided that even if CORIL
provided an opportunity to be heard, it was only post the circular was issued. This post-
decisional hearing cannot be said to be in compliance with principles of natural justice. Nor
can it remedy the mischief of arbitrariness under Article 14.

In the given situation, the Central government cannot save the validity of the Circular by
arguing that they have given post-decisional hearing. If in a situation, pre-decisional hearing
is not feasible only then post-decisional hearing may be resorted to rather than denying
hearing altogether. The catch here is that post-decisional hearing procedure should be used
restrictively and not as a first resort. There have been many situations where courts have
permitted a post-decisional hearing as pre-decisional hearing did not appear to be feasible.

One such case where the Hon’ble Supreme Court has recognised the concept of post
decisional hearing is the case of Maneka Gandhi v. Union of India. In this case, the
passport of petitioner was impounded without giving him pre-decisional hearing. However, a
post-decisional hearing was afforded to the petitioner.

Upholding the validity of such action, the Court observed that the power to impound a
passport may be frustrated if a prior notice and hearing is given to the concerned passport-
holder before taking such an action against him. He may leave the country before his passport
is actually impounded.

Therefore, in such a case, the passport authority may first impound the passport without
giving a hearing, and thereafter an opportunity of hearing should be given to him. A fair
opportunity of being heard following immediately after the impounding order would satisfy
the requirement of natural justice. Thus, strict adherence to the rule of audi alteram partem is
not necessary if it has the effect of paralyzing the administrative process, or the urgency of
the situation demands.

3. Conclusion

Thus, it is observed that the requirements of natural justice cannot be laid down in any strait-
jacket. The facts and circumstances of the case in question would alone provide the answer
whether natural justice has been complied with or not. Thus, the principles of natural justice
cannot be examined in vacuum without making as reference to the fact situation.

Therefore, applying the principles reiterated by the Hon’ble Supreme Court in the case of
H.L. Trehan, it is pertinent to mention that post-decisional hearing is not adequate in case
where the consequences to the concerned person are very serious as in the given case, the
perquisites and allowances are rationalized to their prejudice. The post-decisional hearing
mechanism may be resorted to only when pre-decisional hearing may not be feasible, and the
only choice is between no hearing and a post-decisional hearing.

Hence, the circular issued by the Central government should be struck down.