1) Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311
2) Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101
3) Bhuwalka Steel Industries Ltd. v. Bombay Iron and Steel Labour Board, (2010) 2 SCC 273
4) Davinder Singh v. State of Punjab, (2010) 13 SCC 88
5) United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110
6) Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782
7) I.R.Coelho v. State of Tamil Nadu, (2007) 2 SCC 1
8) Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694
9) Dev Sharan v. State of Uttar Pradesh, (2011) 4 SCC 769
10) K.T. Plantation (P) Ltd. v. State of Karnataka,(2011) 9 SCC 1
11) State of Haryana v. Mukesh Kumar,(2011) 10 SCC 404
12) Greater Noida Industrial Development Authority v. Devendra Kumar,(2011) 12 SCC 375
13) State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436
14) S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427
15) Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547
16) Brij Lal v. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1
17) Maneka Gandhi v. Union of India, AIR 1978 SC 597
18) A.P.Dairy Development Corporation Federation v. B.Narasimha Reddy. (2011) 9 SCC 286
19) V.Noble Kumar v. Authorised Officer, Standard Chartered Bank and others, 2011
20) CTC 513 and R.Sivasubramaniyan v. Senior Manager, SBI, 2011 (4) CTC 492
21) S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427
22) Forward Construction Co. v. Prabhat Mandal (Regd.), (1986) 1 SCC 100
23) S. Nagaraj v. B.R. Vasudeva Murthy, (2010) 3 SCC 353
24) State of Orissa v. Dr (Miss) Binapani Dei (AIR 1967 SC 1269)
25) E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555)
26) Wiseman v. Borneman, 1971 AC 297
27) Schmidt v. Secretary of State or Home Affairs (1969) 2 Ch.D. 14
28) Fontaine v. Chastarton (1968) 112 Sol Gen 690
29) Aiay Hasia v. Khalid Muiib Sehravardi, (1981) 1 SCC 722
30) Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1
31) Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668
32) Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd., (2009) 5 SCC 342
33) State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737
34) State of A.P. v. P.Sagar, AIR 1968 SC 1379
35) Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168
36) Union of India v. Major Bahadur Singh, (2006) 1 SCC 368
37) Davinder Singh v. State of Punjab, (2010) 13 SCC 88
38) Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354
39) Gerard v. Worth of Paris Ltd., (1936) 2 All ER 905 (CA)
40) State of U.P. v. Jasvir Singh and Others, (2011) 4 SCC 288
41) Transcore v. Union of India and another, 2006 (5) CTC 753
42) Trade Well v. Indian Bank, 2007 Cri LJ 2544
43) Indian Bank v. Nippon Enterprises South and others, 2011 (2) CTC 474
44) Central Bank of India v. State of Kerala, 2009 (6) CTC 656
45) V.Noble Kumar v. Authorised Officer, Standard Chartered Bank and others, 2011 (1) CTC 513
46) R.Sivasubramaniyan v. Senior Manager, SBI, 2011 (4) CTC 492
47) S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.4.2012
CORAM
THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
W.P.Nos.950 of 2012, 30223 and 30184 of 2011, 104 and 105 of 2012
W.P.Nos.950 of 2012 and 30223 of 2011:
K.R.Chandrasekaran .. Petitioner
Vs.
1. Union of India
rep. by the Secretary to Government Finance Department New Delhi.
2. The State Bank of India
rep. by the Branch Manager Sri Rangapalayam Branch Salem □ 7.
3. The Assistant General Manager
State Bank of India
Stressed Assets Recovery Branch (SARB)
Santhi Plaza, I Floor, 1/5 Brindavan Road, Fair Lands Salem □ 4.
4. The Chief Judicial Magistrate Salem 7
. .. Respondents
We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet re-remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a Majestic conception? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair-play in action who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration. (Current Legal Problems, 1973 Vol.26 p.16). DAnd then again, in his speech in the House of Lords in Wiseman v. Borneman, 1971 AC 297 the learned Law Lord said in words of inspired felicity:
.. that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only fair play in action . Nor do we wait for directions from Parliament. The common law has abundant riches : there may we find what Byles, J., called Qhe justice of the common law
Thus, the soul of natural justice is fair-play in action and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that fair-play in action demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, MR in these terms in Schmidt v. Secretary of State or Home Affairs (1969) 2 Ch.D. 149. Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf . The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations (vide American Journal of International Law, Vol. 67, p. 479). Magarry, J., describes natural justice as a distillate of due process of law vide Fontaine v. Chastarton (1968) 112 Sol Gen 690. It is the quintessence of the process of justice inspired and guided by fair-play in action If we look at the speeches of the various Law Lords in Wiseman case it will be seen that each one of them asked the question whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded , or, was the procedure adopted by the Tribunal in all the circumstances unfair? The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and Ifair-play in action required that an opportunity should be given to the taxpayer to see and reply to the counter-statement of the Commissioners before reaching the conclusion that Qhere is a prima facie case against him. The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?”
The Supreme Court has also held that in applying the principles of natural justice there is no distinction between a quasi judicial function and administrative function in the following words:
"59. Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry."
...........
30. A Constitution Bench of the Supreme Court presided over by the Hon'ble Chief Justice of India in K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 has analyzed the entire concept of Rule of Law in the context of the constitutional provisions, especially with reference to Articles 14 and 19(1)(g) of the Constitution of India. While holding that the principle of rule of law is the basic structure, it was asserted that violation of principles of natural justice may debilitate the rule of law, in the following words:
"217. The rule of law as a principle contains no explicit substantive component like eminent domain but has many shades and colours. Violation of principle of natural justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc., but such violations may not undermine the rule of law so as to invalidate a statute. Violation must be of such a serious nature which undermines the very basic structure of our Constitution and our democratic principles. But once the court finds, a statute undermines the rule of law which has the status of a constitutional principle like the basic structure, the above grounds are also available and not vice versa. Any law which, in the opinion of the court, is not just, fair and reasonable, is not a ground to strike down a statute because such an approach would always be subjective, not the will of the people, because there is always a presumption of constitutionality for a statute."
"18. A judgment, as is well known, is the authority for the proposition which it decides and not what can logically be deduced therefrom. This Court in Union of India v. Major Bahadur Singh, (2006) 1 SCC 368 has observed:
'9. DThe courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.'"
36. It was in Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354, by referring to an earlier judgment in Municipal Corporation of Delhi v. Gurunam Kaur, (1989) 1 SC 101, the Supreme Court has held that when a point does not fall for decision but incidentally arises for consideration, it does not form part of the ratio of the case and the same is to be treated as a decision passed in sub silentio. The Supreme Court by referring to Gurunam Kaur case, supra, also considered the text from Salmond on Jurisprudence explaining the concept of sub silentio as follows:
"42. It has been held in the decision of this Court in MCD v. Gurnam Kaur, (1989) 1 SCC 101 that when a point does not fall for decision of a court but incidentally arises for its consideration and is not necessary to be decided for the ultimate decision of the case, such a decision does not form a part of the ratio of the case but the same is treated as a decision passed sub silentio.
43. The concept of sub silentio has been explained by Salmond on Jurisprudence, 12th Edn. as follows: (Gurnam Kaur case, SCC pp. 110-11, para 11) Q. CIA decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the Court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio.
2) Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101
3) Bhuwalka Steel Industries Ltd. v. Bombay Iron and Steel Labour Board, (2010) 2 SCC 273
4) Davinder Singh v. State of Punjab, (2010) 13 SCC 88
5) United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110
6) Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782
7) I.R.Coelho v. State of Tamil Nadu, (2007) 2 SCC 1
8) Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694
9) Dev Sharan v. State of Uttar Pradesh, (2011) 4 SCC 769
10) K.T. Plantation (P) Ltd. v. State of Karnataka,(2011) 9 SCC 1
11) State of Haryana v. Mukesh Kumar,(2011) 10 SCC 404
12) Greater Noida Industrial Development Authority v. Devendra Kumar,(2011) 12 SCC 375
13) State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436
14) S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427
15) Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547
16) Brij Lal v. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1
17) Maneka Gandhi v. Union of India, AIR 1978 SC 597
18) A.P.Dairy Development Corporation Federation v. B.Narasimha Reddy. (2011) 9 SCC 286
19) V.Noble Kumar v. Authorised Officer, Standard Chartered Bank and others, 2011
20) CTC 513 and R.Sivasubramaniyan v. Senior Manager, SBI, 2011 (4) CTC 492
21) S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427
22) Forward Construction Co. v. Prabhat Mandal (Regd.), (1986) 1 SCC 100
23) S. Nagaraj v. B.R. Vasudeva Murthy, (2010) 3 SCC 353
24) State of Orissa v. Dr (Miss) Binapani Dei (AIR 1967 SC 1269)
25) E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555)
26) Wiseman v. Borneman, 1971 AC 297
27) Schmidt v. Secretary of State or Home Affairs (1969) 2 Ch.D. 14
28) Fontaine v. Chastarton (1968) 112 Sol Gen 690
29) Aiay Hasia v. Khalid Muiib Sehravardi, (1981) 1 SCC 722
30) Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1
31) Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668
32) Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd., (2009) 5 SCC 342
33) State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737
34) State of A.P. v. P.Sagar, AIR 1968 SC 1379
35) Indra Sawhney (2) v. Union of India, (2000) 1 SCC 168
36) Union of India v. Major Bahadur Singh, (2006) 1 SCC 368
37) Davinder Singh v. State of Punjab, (2010) 13 SCC 88
38) Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354
39) Gerard v. Worth of Paris Ltd., (1936) 2 All ER 905 (CA)
40) State of U.P. v. Jasvir Singh and Others, (2011) 4 SCC 288
41) Transcore v. Union of India and another, 2006 (5) CTC 753
42) Trade Well v. Indian Bank, 2007 Cri LJ 2544
43) Indian Bank v. Nippon Enterprises South and others, 2011 (2) CTC 474
44) Central Bank of India v. State of Kerala, 2009 (6) CTC 656
45) V.Noble Kumar v. Authorised Officer, Standard Chartered Bank and others, 2011 (1) CTC 513
46) R.Sivasubramaniyan v. Senior Manager, SBI, 2011 (4) CTC 492
47) S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.4.2012
CORAM
THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
W.P.Nos.950 of 2012, 30223 and 30184 of 2011, 104 and 105 of 2012
W.P.Nos.950 of 2012 and 30223 of 2011:
K.R.Chandrasekaran .. Petitioner
Vs.
1. Union of India
rep. by the Secretary to Government Finance Department New Delhi.
2. The State Bank of India
rep. by the Branch Manager Sri Rangapalayam Branch Salem □ 7.
3. The Assistant General Manager
State Bank of India
Stressed Assets Recovery Branch (SARB)
Santhi Plaza, I Floor, 1/5 Brindavan Road, Fair Lands Salem □ 4.
4. The Chief Judicial Magistrate Salem 7
. .. Respondents
We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet re-remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a Majestic conception? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair-play in action who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration. (Current Legal Problems, 1973 Vol.26 p.16). DAnd then again, in his speech in the House of Lords in Wiseman v. Borneman, 1971 AC 297 the learned Law Lord said in words of inspired felicity:
.. that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only fair play in action . Nor do we wait for directions from Parliament. The common law has abundant riches : there may we find what Byles, J., called Qhe justice of the common law
Thus, the soul of natural justice is fair-play in action and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that fair-play in action demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, MR in these terms in Schmidt v. Secretary of State or Home Affairs (1969) 2 Ch.D. 149. Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf . The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations (vide American Journal of International Law, Vol. 67, p. 479). Magarry, J., describes natural justice as a distillate of due process of law vide Fontaine v. Chastarton (1968) 112 Sol Gen 690. It is the quintessence of the process of justice inspired and guided by fair-play in action If we look at the speeches of the various Law Lords in Wiseman case it will be seen that each one of them asked the question whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded , or, was the procedure adopted by the Tribunal in all the circumstances unfair? The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and Ifair-play in action required that an opportunity should be given to the taxpayer to see and reply to the counter-statement of the Commissioners before reaching the conclusion that Qhere is a prima facie case against him. The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?”
The Supreme Court has also held that in applying the principles of natural justice there is no distinction between a quasi judicial function and administrative function in the following words:
"59. Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry."
...........
30. A Constitution Bench of the Supreme Court presided over by the Hon'ble Chief Justice of India in K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 has analyzed the entire concept of Rule of Law in the context of the constitutional provisions, especially with reference to Articles 14 and 19(1)(g) of the Constitution of India. While holding that the principle of rule of law is the basic structure, it was asserted that violation of principles of natural justice may debilitate the rule of law, in the following words:
"217. The rule of law as a principle contains no explicit substantive component like eminent domain but has many shades and colours. Violation of principle of natural justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc., but such violations may not undermine the rule of law so as to invalidate a statute. Violation must be of such a serious nature which undermines the very basic structure of our Constitution and our democratic principles. But once the court finds, a statute undermines the rule of law which has the status of a constitutional principle like the basic structure, the above grounds are also available and not vice versa. Any law which, in the opinion of the court, is not just, fair and reasonable, is not a ground to strike down a statute because such an approach would always be subjective, not the will of the people, because there is always a presumption of constitutionality for a statute."
"18. A judgment, as is well known, is the authority for the proposition which it decides and not what can logically be deduced therefrom. This Court in Union of India v. Major Bahadur Singh, (2006) 1 SCC 368 has observed:
'9. DThe courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.'"
36. It was in Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354, by referring to an earlier judgment in Municipal Corporation of Delhi v. Gurunam Kaur, (1989) 1 SC 101, the Supreme Court has held that when a point does not fall for decision but incidentally arises for consideration, it does not form part of the ratio of the case and the same is to be treated as a decision passed in sub silentio. The Supreme Court by referring to Gurunam Kaur case, supra, also considered the text from Salmond on Jurisprudence explaining the concept of sub silentio as follows:
"42. It has been held in the decision of this Court in MCD v. Gurnam Kaur, (1989) 1 SCC 101 that when a point does not fall for decision of a court but incidentally arises for its consideration and is not necessary to be decided for the ultimate decision of the case, such a decision does not form a part of the ratio of the case but the same is treated as a decision passed sub silentio.
43. The concept of sub silentio has been explained by Salmond on Jurisprudence, 12th Edn. as follows: (Gurnam Kaur case, SCC pp. 110-11, para 11) Q. CIA decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the Court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio.
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