Useful Notes on The Right of Personal Hearing in India

When a party does not ask for an op­portunity for granting a personal hearing, there can be no injustice in not following that course. In another Calcutta case, no personal hearing was asked for or sought in the reply to the show-cause notice. It was held that—

(a) Personal hearing or right to cross-examine is not in every case part of the reasonable opportunity.

(b) It depends upon the facts and circumstances of each case.

The Gujarat High Court held that:

1. Before Article 311 (2) of the Constitution was amended in 1963, the decision of the various High Courts were not uniform—

(a) On the subject of personal hearing being given to the delinquent, and

(b) On the subject whether reasonable opportunity to be given to the servant was meant that the opportunity should be given at both the stages of inquiry or only once.

But, ultimately, the trend of the decisions of the Supreme Court was that what was intended by the legislature was to give opportunity to the servant at both the stages viz.,

(i) The stage of inquiry and also

(ii) The second stage when the punishing authority decides what punishment should be meted out.

But, at the same time, these decisions laid down that—

(a) The personal right of hearing can only be claimed at the first stage when the government servant must have the opportunity-

(i) To lead evidence,

(ii) To cross-examine witness; and

(iii) To advance arguments;

(b) At the second stage, it would be sufficient compliance with the requirement of the constitutional protection if a right of presentation only is given.

It appears that the Parliament, in order to clarify its intention, made the amendment which now provides for two stages of departmental inquiry and opportunity to be given at both the stages, but the right of personal hearing is given only at the first stage and a right to make a representation at the second.

2. The right of representation does not include the right of personal hearing.

3. It is true that Art. 311 does not directly lay down any rule of conduct of procedure at the stage of appeal. But the basis on which two different types of opportunity, which is considered to be reasonable opportunity, is af­forded to the servant should govern the stage of appeal also.

4. It appears fairly clear that the fundamental basis on which it is thought necessary to include in the concept of ‘reasonable opportunity’ the right of personal hear­ing and putting forward of his case at the first stage, is that he must have the opportunity of-

(a) Leading his evidence;

(b) Cross-examining the witness of the government on which reliance is placed to hold the inquiry, pointing out the demeanour of these witnesses; and

(c) Personally appearing to the inquiry officer to appreciate that evidence in the light in which he would like it to be appreciated; and

(d) Urging his case to convince him of the weakness of the government case and the strength of his case.

5. At the second stage, however,

(a) Only a right to make representation has been held to be sufficient compliance with the requirement or the con­stitutional protection of giving of reasonable oppor­tunity; and

(b) The requirement of personal hearing is not thought necessary because, at that stage, the authority has merely to take his decision from the record before him as regards the adequate punishment to be awarded to him.

There the delinquent can represent in writing and put forward all the points and arguments from all the records which is always avail­able to him, as to why the punishment proposed to be awarded should not be awarded.

6. Therefore, the right of personal hearing is intended to be a necessary requirement of the concept of reasonable opportunity to show cause only at the stage when-

(a) The evidence is to be led,

(b) Cross-examination of witnesses is to be done, and

(c) The demeanour of the witnesses is to be watched and denoted and not at the stage when- the decision is to be taken from the record before the deciding authority.

7. The proceeding in the departmental inquiries is only quasi- judicial proceedings. Therefore, all the procedure of an ordinary trial or proceeding in a Court of law are not applicable.

8. In the departmental inquiries reasonable opportunity will be said to have been given the principles of natural justice and fair play are observed.

It is now well settled that the principles of natural justice and fair play do not postulate personal hearing at every stage, and Parlia­ment has now clearly signified its intention and so have the Law Courts that the right of personal hearing is only contemplated by the principles of natural justice at the first stage of inquiry where evidence is to be led and cross-examination should be allowed.

9. The principles obtainable in proceedings before Court of law that, even at the stage of appeal, the right of personal hearing is a necessary right to do justice be­tween the parties, cannot be bodily applied to departmental inquiries which are not bound to follow all the procedure and requirement of judicial trial or proceeding.

10. Therefore, the order passed by the D.S.P. dismissing the respondent police constable is not bad in law as he was not given a personal hearing by the appellate authority.

It is not necessary for the State Government to give a personal hearing to the appellant or his authorised representative before dis­posal of his appeal filed under section 2-A (2) of the Hyderabad Abolition of Inams and Cash Grants Act, 1965.