AN ANALYSIS OF FAIR HEARING DURING COVID-19 PANDEMIC IN INDIA by-Shashwata Sahu

Abstract

The Latin term ‘audiatur et altera pars’ (‘hear the other side’) is the source of the maxim audialterampartem. The maxim states that no one shall be punished without a hearing and that any decision must be made until both parties have had a chance to present their side of the story. Natural justice was established with the lofty goal of giving the respondent enough chance to present their side of the story and to cross-examine the witnesses who are testifying against him, as well as to present evidence that proves his innocence of all charges. Investigating the ability of the COVID epidemic to act as an exception to the rule of fair hearing and the ways in which it affected the operations of adjudicatory bodies will be the focus of this investigation. Both this investigation and the dismissal of Maharashtra police assistant inspector Sachin Waze are priorities. Using a Qualitative-Doctrinal Explanatory approach to study, the researcher intends to continue. For this research, the researcher will use secondary data, such as established principles of natural justice, an analysis of the Constitution of India, Supreme Court rulings and some High Court rulings, and relevant scholarly publications and books.

Introduction

Due consideration must be given to natural justice in administrative disciplinary processes, since these proceedings are not normally subject to stringent procedural enactments like the Code of Criminal Procedure or Code of Civil Procedure. Natural justice’s rule of audialterampartem mandates that the disciplinary board provide the opposing party an appropriate and reasonable opportunity to adequately express and justify their side before making any conclusive judgments. That being said, there are certain exceptions to this principle. The duty of audialterampartem can be dispensed with in some situations where it is either impossible or desirable to undertake an investigation after hearing from both parties. This paper is a post facto research to highlight the state of the audialterampartem rule during the COVID-19 pandemic and the extraordinary situations that arose as a result of the hardships caused by the limits placed in position to prevent the spread of pandemics.

Background of audi alteram partem rule

With “Article 14 & Article 21” of the Indian Constitution, the legal basis for audialterampartem inflow and other principles of natural justice may be traced back to the equal protection of laws guaranteeing equal access to justice and individual liberty, respectively. In the case of “Maneka Gandhi v. Union of India,” the Supreme Court correctly noted this.

The rule of audialterampartem’s first limb is notice. Adjudicating authorities are required to give the opposing party sufficient notice to reveal all the allegations and evidence against him, in accordance with the law. To ensure that the other party has a reasonable amount of time and opportunity to prepare and present his side and argue for his innocence, such an absolute responsibility is necessary. “Code of Criminal Procedure and Code of Civil Procedure” both have rules in which a proceeding in court begins with notice to the opposing party and the appearance of all parties. Procedural laws discourage the use of ex parte orders, i.e., orders issued without consulting the opposing party first. However, in some cases, such orders can be granted. It was held that the section of the notification that was clearly inadequate and improperly disclosing the penalty granted to those who were convicted in “Punjab National Bank v. All India Bank Employees Federation” was annulled. Observing that the notice must always be clear and unambiguous, the Supreme Court in “Keshav Mills Co. Ltd. V. The Union of India” reiterated the same.

Hearing is the second limb of this rule. It mandates that no order be issued until both parties have been heard on the merits. Several high-profile cases, including “Fateh Singh v. State of Rajasthan, National Co-operative Bank v. Ajay Kumar, and HarbansLal v. Commissioner,” established the high court’s view on this issue. According to this rule, there are three limbs to this rule: evidence, the right to challenge adverse evidence, and the right to cross-examine. “Stafford v. Minister of Health, HiraNath v. Principal, Rajendra Medical College, and Kanungo& Co. V. Collector of Customs” are a few notable examples in this regard. The right to legal representation, the prohibition of taking evidence without the consent of the opposing party, institutional decisions, the prohibition of dictation, the rule against decision-making in haste, the concept of a reasoned decision, and other elements of the rule of fair hearing round out the list.

The audi alteram partem rule, on the other hand, is not infallible and can be overridden in certain instances. Some examples of these exclusions include:

Extreme Situation necessitating Immediate Action
Confidentiality
Non-operational actions
Preventive measures taken in the interim
Impracticability
In cases where the individual’s rights are not
Legislative Function or Statutory Exclusion
The Necessity Principle
A pact or agreement
Theory of Useless formality
The Advancement of Education
Action Across Disciplines

It was impossible to conduct a reasonable investigation during the COVID-19 pandemic. Same reason, Assistant Inspector SachinWaze of the Maharashtra Police was sacked as a reasonable investigation was impossible during the pandemic and this case was garnering immediate attention which is discussed below.

Pandemic: Sufficient to Constitute an Extraordinary Emergency

In the event of an emergency, an inquiry that is not time-sensitive and requires immediate action, AUDI ALTERAM PARTEM is an exception to this rule. Audi alterampartem does not apply in all cases, as evidenced by the literature analysis, but there are exceptions. An example of an exception would be when a reasonable departmental inquiry is impractical at the moment, but the charges are so serious that they necessitate immediate disciplinary action by the disciplinary authority. Whether or not a situation can be classified as an emergency is solely up to the administrative judgement. A court’s ability to review and overturn an order based on its merits does not exclude it from being subject to judicial review under certain circumstances. “Swadeshi Cotton Mills V. Union of India was an example of an Indian court’s interpretation of Section 18A of the Industries (Development and Regulation) Act.”

Where does pandemic interfere with adjudicatory bodies?

The COVID-19 pandemic has had an enormous influence on all forms of government and justice delivery. As a result, all courts and tribunals were put on lockdown for a short period of time, following which they reopened. Civil servants were heavily burdened with pandemic- related responsibilities, such as enforcing covid limits and providing healthcare services, as well as developing creative measures to combat corona. A quarter or more of all institutions were operating at a reduced level of efficiency.

Pandemic’s exclusion from the rules of Fair Hearing

Adjudicating bodies have also been impacted by the pandemic, as described before. All of the administration’s attention was focused on halting the spread of the pandemic. Virtual activities took the place of all previously conducted physical activities. It is therefore not feasible to conduct an appropriate departmental investigation in such a timeframe. When it comes to applying the rule of fair hearing, the disciplinary authority had two options: either wait for the normalisation of the situation in a post-pandemic era or act on citing it as an exceptional situation where the rule can be done away with. Despite the fact that the former was the norm, under specific situations, the rule of fair play can be dispensed with. Because of this, the COVID-19 pandemic can be considered an extraordinary case for the purposes of waiving the rule of audi alteram partem in administrative decisions and disciplinary actions.

Case study of SachinWaze

As evidenced by an examination of the existing scientific literature, it appears that the ongoing epidemic of Corona cannot be adequately addressed under the exemption of ‘Emergencies that require quick response’ to the rule of fair hearing. A constitutional and administrative examination of the process through which Assistant Police Inspector SachinWaze was terminated by the Maharashtra Police has a lack of research, according to the author. Although some studies have sought to study the sacking procedure from the perspective of the Indian Constitution, they have not taken into account the judicial decisions that have shaped the field of rule of fair hearing.

Several legal questions could not be satisfactorily addressed by the current literature. The first is whether or not the corona epidemic can be considered an exception to the rule of “emergency exists and prompt action is needed” in accordance with the principle of fairness. Finally, an examination of SachinWaze’s sacking proceedings from an administrative and constitutional legal perspective has still to be resolved.

As part of the investigation, the following two questions must be answered: Concerning the first question, whether an exception to the concept of fair hearing can be made for an emergency situation in which rapid action is required, as well as if the procedure followed in dismissing SachinWaze is legal in light of constitutional and administrative law.

1.Analysis of procedural fairness in the dismissal of SACHIN WAZE

Here we’ll talk about how and why people get fired. In the late 1990s, MrSachinHinduraoWaze, a Maharashtra cadre officer from the 1990 batch, became known as an “encounter cop” for his work in dismantling organised crime rings. In spite of this, he has been dogged by controversy throughout his career. Previously, he was expelled from the police force for his role in the killing of a Mumbai bombings suspect in custody. A number of high-profile cases were assigned to him soon after his reinstatement, including a phoney TRP case and an Antilia Security spoof, among others. In June 2020, he was readmitted to the military. However, he was detained by the National Investigation Agency (NIA) on March 13, 2021, in connection with the Antilia Bomb Scare case, in which an explosives-laden SUV was found near the home of businessman MukeshAmbani and the death of MansukhHiran.

A tweet from the Maharashtra Police Department on May 12, 2021, which stated that Assistant Police Inspector SachinWaze had been fired, was published in The Print on May 12, 2021, along with a statement from Mumbai Police Commissioner HemantNagrale. On May 11, 2021, the following tweet was posted: “Police have terminated API SachinWaze’s employment with immediate effect. In accordance with Article 311(2)(B) of the Indian constitution, an order of dismissal has been issued.”

2.Procedures for Sacking and Problems

Initially, Mumbai Police Commissioner HemantNagrale issued an order for the dismissal of API SachinWaze, which allows the appointment officer to dismiss a civil servant from service without conducting a departmental inquiry in cases where the adjudicating authority is of the opinion that a reasonable investigation is impracticable at that time. This is how the procedure for dismissing API SachinWaze was initiated.

An inquiry with sufficient opportunity for both parties to present and defend their cases is required under the second principle of Natural justice, which is the norm of audialterampartem. Before dismissal in this case, SachinWaze was not given notice of his dismissal, he was not given an opportunity to present evidence and rebuttals, and he was not given a right to cross- examination.

3.Justification for adopted procedure

All of the irregularities in the proceedings are readily obvious, and a court of law will not sustain them unless an exception to the rule of fair hearing is provided. Mumbai Police Commissioner HemantNagrale cited the impracticability of a proper inquiry with ample time for both sides to present and defend their case as reasoning for the discharge of API SachinWaze from the Mumbai Police force. He had cited these two grounds for his decision.

A long list of criminal allegations had been filed against him, including those connected to the death of a prisoner in custody, the erasure of evidence in connection with an Antilia Security panic, and the murder of renowned businessman MansukhHiran. For example, he mentioned the National Investigation Agency’s findings on possible official weapons-handling violations as well as other offences involving companies while alerting him of his dismissal. A thorough investigation into the merits of each case would be impossible, as explained by the Police Commissioner, and therefore, the NIA’s findings can be relied upon in lieu of a new departmental investigation.

Inconveniences caused by the COVID-19 outbreak were cited as a secondary reason for the employee’s dismissal. Due to the lockdown imposed by the pandemic, all adjudicatory bodies were temporarily closed. As a result, the Police Department was forced to devote the majority of their time and resources to enforcing COVID restrictions and lockdowns. A legitimate departmental investigation is not feasible in this situation.

Under the circumstances described above, “Article 311 (2) (b) of the Indian Constitution” was invoked as a subjugation clause and the requirement of fair hearing was abolished.

4. Administered and Constitutional Analysis of Justification in Advanced

The idea of audialterampartem necessitates that administrative procedures be equitable, equal, rational, and fair. Fair play and justice must be ensured at all times. In the literature review section of this study, the potential impact of the rule of fair hearing on administrative law was briefly discussed. In the following paragraphs, we’ll talk about the Constitutional version of the same rule.

“Article 311 clause 2 of India’s Constitution” clearly shows the principle of equal protection of the law throughout the country. This provision protects civil officials from being arbitrarily detained. Supreme Court v. A. N. Singh is worth mentioning in order to properly define what a civil post is in the truest sense, as the Court dealt with the employer-employee relations in that case. A civil position is one held by a member of the union or state civil service, the entire Indian military, or another member of the Indian military who is in a position of civil authority. Protections under this article, on the other hand, do not apply to military personnel, statutory public corporation appointments, or those who fraudulently obtain civil office.

If a civil servant is fired, demoted, or otherwise penalised, the provisions of “Article 312 (2)” kick in. In the case of “ParshotamLalDhingra v. Union of India,” the Supreme Court introduced a two-pronged test to determine whether an action is, at its core, a penalty. It is important to determine whether the person is eligible to occupy the position and if he has experienced any criminal or civil penalties in connection with the post’s actions. It is not protected by the above- mentioned condition if an employee is terminated because of an illegal appointment.

Preliminary to any disciplinary action, the public servant must be given an opportunity to present his or her side of the story and have the evidence and witnesses used against him explained and cross-examined by a reasonable departmental investigation. It is imperative that this be done in accordance with “Article 14 and Article 21 of the Indian Constitution.” During the pre-42nd Amendment era, “Article 311” provided federal servants with two levels of protection: the inquiry stage and the punishment stage. However, the 42nd Amendment abolished the second-stage protection. In “Keya Kar v. The State of West Bengal,” the Supreme Court reaffirmed these same grounds.

However, certain exceptions to the foregoing restrictions are specifically provided for in Article

“Article 311 (2) (a)” refers to the exclusion of inquiry in cases of criminal convictions, which is the first exception. However, if the conviction is overturned, the order of dismissal will no longer be valid. When a reasonable inquiry would be impractical at the moment, the second sub-clause is relevant. The disciplinary committee determines what is and isn’t feasible based on what a reasonable person would consider impractical. While the disciplinary committee’s judgement is final, it does not exclude a judicial review of that decision. It is the process of decision-making that is scrutinised in judicial review, rather than the outcome itself. To qualify for a waiver of a reasonable inquiry, the third exemption must be met.

According to “Article 311 (2) (b),” the dismissal of SachinWaze was done without a reasonable investigation because it would be impractical to conduct such an investigation. This is exactly what was said in writing, as it had been previously stated. The Disciplinary authorities’ explanation, as previously stated, is credible in the eyes of a reasonable person. As a result, it appears that the firing of SachinWaze was constitutionally acceptable, even though a court appeal is possible.

Conclusion: the way ahead

All facets of justice administration and administrative adjudication have been severely disrupted by the pandemic. All attempts should be taken to respect the holy procedural norms of audialterampartem and the subjection provisions must be used in certain rare instances, however. Under no circumstances could arbitrary acts conducted under the pretence of the epidemic be allowed to take place. The aggrieved person should have access to the courts for any procedural errors or arbitrary measures committed against him, in addition to the above- mentioned efforts. There must be no irregularities or impropriety in whatever process used to arrive at the final conclusion even if the Court does not typically go into the merits of the case.

Bibliography Websites –

Books –

Introduction to the Constitution of India by D. Basu
Constitution of India by N. Shukla
Principles of Administrative Law by AmitaDhanda
Administrative Law by P. Messy
The Constitutional Law of India by N. Pandey
Indian Constitutional Law by P. Jain

Journals –

NLIU Law Review
CNLU Law Journal
Law Times Journal
NUJS Law Review
Shimla Law Review

Cases –

Maneka Gandhi The Union of India (1978) 1 SCC 248
Punjab National Bank All India Bank Employees Federation (1958) SCR 828
Keshav Mills Ltd v. Union of India (1973) 3 SCR 22
National Cooperative Bank Ajay Kumar (1994) 3 SCC 406
Fateh Singh State of Rajasthan (1996) 1 SCC 562
Stafford Minister of Health [1935] I K.B, 249
Kanungo& v. Collector of Customs (1973) 2 SCC 438
J . Mody v. State of Bombay
A. Khan v. State of Haryana
HarbansLal Commissioner
Union of India J. P. Mitter
Bihar School Examination Board Subhash Chandra
State of Uttar Pradesh A. N. Singh
ParshotamLalDhingra Union of India
Union of India Raghuwar Pal Singh (2018) 15 SCC 463
Union of India T. R. Verma (1957) SCR 449
Khem Chand Union of India
Keya Kar v. State of West Bengal 2019 SCC
Union of India Tulsiram Patel
Southern Railway Officers Association Union of India
Union of India M. M. Sharma
HiraNath Principal, RajendraMedicalCollege (1973) 1 SCC 805
Swadeshi Cotton Mills Union of India (1981) 1 SCC 664

Constitution and Statutes –

The Constitution of India, 1950
The All India Services (Conduct) Rules, 1968
The Central Civil Services (Conduct) Rules, 1964
Maharashtra Civil Services rules, 1981

¹ Student at KIIT School of Law, Bhubaneswar