APPLICATION OF PRINCIPLES OF ADMINISTRATIVE LAW IN COURT

MANAGEMENT

The most significant and outstanding development of the twentieth century is the rapid
growth of administrative law. It does not, however, mean that there was no administrative
law before twentieth century. Being related to public administration, administrative law
should be deemed to have been in existence in some form or other in every country having
some form of government. It is as ancient as administration itself as it is a concomitant of
organised administration.

In India itself, administrative law can be traced back to the well organised and centralised
administration under the Mauryas and the Guptas, 1 several centuries before the Christ,
following through the administrative system of the Mughals to the administration under the
East India Company, the precursor of the modern administrative system. What the opening
statement, therefore signifies is that administrative law has grown and developed
tremendously, in quantity, quality and relative significance, in the twentieth century, that it
has assumed a more recognisable form in the present century so much so that it has come
to be identified as a branch of public law by itself, distinct and separate from Constitutional
Law.

There is a radicle change in the philosophy as to the role and function of the state. The
governmental functions have multiplied by leap and bounds, making it exceedingly complex.
The negative policy of maintaining law and order and of ‘laissez faire’ is given up. Today the
state act as a progressive democratic state, it seeks to secure social security and social
welfare for the common man.

The idea underlying Administrative law is to evolve some principles for the exercise of
powers and functions by the innumerable administrative bodies which are set up in the
country to discharge the various and manifold functions which the state has now assumed.
Administrative law also seeks to emphasize upon the means of redress against these bodies
in case a person feel aggrieved by any action of any such body. Administrative law has a
more functional basis.

1
Shamashastry Kautilya’s Arthashastra. 56-57 (1961), Kane, Histroty of Dharmashstra Vol 1, 201 (1968).
Administrative law principles and Disciplinary proceedings.

Rule of law is one of the basic principles of the English Constitution and the doctrine is
accepted in the Constitution of U.S.A and India as well. The entire basis of Administrative
Law is the doctrine of the rule of law. The term ‘Rule of Law’ is taken from England. It means
that no man is above the law and that every person is subject to the jurisdiction of ordinary
courts of law, irrespective of his rank and position. ‘Rule of Law’ requires that no person
should be subjected to harsh, uncivilized or arbitrary treatment. Rule of law is associated
with the word ‘law’ which means that man or a society must not govern by a man or ruler
but rather than they must be govern by Law. In other words we can say that law means law
of land which is defined under Article 13 of Indian Constitution. Rules mean law rules. Since,
there is no physical existence of law so law means government based on principle. It means
all the acts of government should be reasonable and according to law

As the object of rule of law is to protect individual liberty then to fulfil this object it can be
taken many meanings. K.C Davis gives seven principles or meanings of the term rule of law.

1. Law and order

2. Fixed rule

3. Due process of law or fairness

4. Observance of principle of natural justice

5. Elimination of discretionary power

6. Preference for Judges and Ordinary courts

7. Judicial Review of administrative actions.

Rule of Law under Indian Constitution:

Rule of law has played a great role to develop Indian democracy. When Indian constitution
was frame they had two options e.g. USA & England. They adopted some provisions from
USA and some from England. Our constitutional founder fathers adopted the Rule of Law
from England and incorporated so many provisions in Indian constitution. Indian
Constitution is supreme no one is above Indian constitution Rule of Law under Indian
Constitution. Rule of law has played a great role to develop Indian democracy. When Indian
constitution was frame they had two options e.g. USA & England. They adopted some
provisions from USA and some from England. Our constitutional founder fathers adopted
the Rule of Law from England and incorporate so many provisions in Indian constitution.
Indian Constitution is supreme no one is above Indian constitution. All three organs follow
constitution if any organ does something in the violation of the constitution all such acts will
be ultra vires. The preamble of The Constitution is also tells about Rule of Law. Part- III and
all fundamental Rights come under the Rule of Law, which are enforceable by Law. If these
are violated we can go to the Supreme Court and High court under Article 32 & 226. The
term Law includes all orders, rules, regulations, bylaws, notice and customs. It expects that
all these will be according to Constitutional provisions if they will against, under article-13
they will be declare unconstitutional and void. In the Constitution of India guaranteed
certain rights which can be enforced by the courts. At this Juncture, we may consider the
position prevailing in India as regards the third principle of Dicey’s doctrine of Rule of Law,
i.e., predominant of legal spirit. Until this principle was being considered in the context of
interpreting the provisions of the Constitutions. In our Constitutional system, the central
and most characteristic feature is the concept of the rule of law which means, in the present
context, the authority of law courts to test all administrative action by the standard of
legality. The administrative or executive action that does not meet the standard will be set
aside if the aggrieved person brings the appropriate action in the competent court. The
doctrine of Rule of Law has been adopted in Constitution of India. The principles of Rule of
Law i.e. justice, equality and liberty are enriched in the Constitution of India. The
Constitution of India is above all the laws implemented in Indian Territory and any law made
by the central government or by the state government must be in confirmation with the Constitution
of India. If any law made by the legislation under the jurisdiction of India which is against the
mandates of the constitution, the law would be void. The constitution of India guarantees equality
before the law, as an aspect of the rule of law, under Article-14.
Conducting disciplinary Proceedings for judicial officers and ministerial staff

One of the widest usage of principles of Administrative law, precisely Natural Justice is
found in cases of disciplinary proceedings, wherein guilt of a delinquent employee is
ascertained and a punishment is reached. It is trite law that the departmental proceedings
are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not
merely a representative of the department. He has to act as an independent and impartial
officer to find out the truth. The major punishment awarded to an employee visit serious
civil consequences and as such the departmental proceedings ought to be in conformity
with the principles of natural justice. ATKIN, L.J as he then was in R v. Electricity Commrs 2
stated that when an body persons has legal authority to determine questions affecting the
rights of subjects having the duty to act judicially, such body of persons is quasi-judicial body
and decision given by them is Quasi-judicial order. A quasi-judicial function stands mid-way
between a judicial function and an administrative function. A quasi-judicial decision is
nearer the administrative decision in terms of its discretionary element and nearer the
judicial decision in terms of procedure and objectivity of its end-product. Hence, authorities
have to strictly adhere to statutory rules while imposing punishment.

Quasi-judicial implies that the act is not wholly judicial and that it describes not only a duty cast on
the executive body or authority to conform to the forms of judicial procedure in performing some
acts in exercise of executive power.

There are two important incidents of a quasi-judicial function:

1. The concerned authority has to observe principles of natural justice.

2. Once a decision has been taken by the concerned authority, it cannot review its own decision
unless it has statutory authority to do so.

It has been evolved as a rule of the land that when a departmental enquiry is conducted
against any government servant, it cannot be treated as a casual exercise. The enquiry
proceedings also cannot be conducted with the closed mind. The Enquiry Officer has to be
wholly unbiased. The rules of natural justice are required to be observed to ensure not only
that justice is done but it is manifestly seen to be done. The object of rules of natural justice

2
(1924) 1 KB 171 : 130 LT 164.
is to ensure that a government servant is treated fairly in proceedings which may culminate
in imposition of punishment including dismissal/removal from service.3

With the increase of power of administrative authorities, it may be necessary to provide guidelines
for the just exercise thereof. To prevent abuse of power and to see that it does not become a ‘new
despotism,’ courts have evolved certain principles to be observed by adjudicating authorities.

The departmental proceedings consist of several stages viz., initiation of proceedings; enquiry in
respect of the charges levelled against the civil servant; and a final order which is passed after the
conclusion of the enquiry.

This is in spirit of the Dicey’s concept of Rule of Law, which has been adopted in the
Constitution of India. The Constitution itself enunciates the ideals of justice, liberty and
equality. In Chapter III of the Constitution these concepts are enshrined as fundamental
rights and are made enforceable.

According to Prof. Dicey, rule of law has three means or we can say three principles which are must
be followed so that there will be supremacy of rule of law. The three principles are:

1. Supremacy of law;

2. Equality before Law; and

3. Predominance of Legal Spirit

Natural Justice in Disciplinary Proceedings:

Rules of Natural justice have developed with the growth of civilization, and the content
thereof is often considered as a proper measure of the level of civilization and rule of law
prevailing in the community. Natural justice implies fairness, reasonableness, equity and
equality. Natural justice is a concept of common law, and it is the common-law world
counterpart of the American “Due Process” and civil law “proportionality”.

Rules of natural justice are not codified cannons. They are principles ingrained in the
conscience of man. Justice is based at substantially on natural ideals and values which are
universal. Natural justice is not circumscribed by linguistic technicalities and grammatical
niceties or logical prevarication.

3
State of UP & Others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131.
The purpose of Principles of natural justice is prevention of miscarriage of justice and hence
observance thereof is the pragmatic requirement of fair play in action. 4 The aim of rules of
natural justice is to secure justice or to put it negatively to prevent the miscarriage of justice .
These rules operate only in areas not covered by any law validly made. In
other words they do not supplant the law but supplement it.5

The first principle of natural justice aims at to govern the conduct of administrative authority
in the exercise of their disciplinary functions invested with the authority to adjudicate upon
the matters involving civil consequences to individuals. It implies that the public authorities
must either give the person notice that they intend to take the matter into their consideration
with a view to coming to a decision, or if they have come to a decision, they propose to act
upon it, and to give him an opportunity of showing cause why such step should not be taken.

In the case of Manohar Lal Sharma Vs. Principal Secretary, (2014) 9 SCC 614 wherein the
three-Judge Bench has reiterated that principles of natural justice, though universal, must be
realistically and pragmatically applied.

There must be observance of Principles of Natural Justice even when Rules are silent. Even
where the rules require action without notice or opportunity of explanation and defence to the
delinquent, the principles of natural justice must be read into the rules.6
It was with the passage of time that the term natural justice became identified with the two
constituents of a fair hearing:

i) Nemo judex in re sua, i.e., the authority deciding the matter should be free from bias Rule
against bias -No one should be made judge in his own cause, or the rule against bias- Nemo in
propria causa judex, esse debet.

ii) Audi alteram partem, i.e., a person affected by a decision has a right to be heard- Hear the other
party, or the rule of fair hearing, or the rule that no one should be condemned unheard.

These are the two principles now transparency and good governance may be added as a new
dimension which includes the duty to pass a speaking order.

Article 21 of the Constitution, all that fairness which is included in the principles of natural justice
can be read into Article 21 when a person is deprived of his life and personal Liberty. In other areas,
it is Article 14 which now incorporates the principles of natural justice. Article 14 now applies not
only to discriminatory class legislation but also to arbitrary or discriminatory state action. Because
violation of natural justice results in arbitrariness, therefore, violation of natural justice is violation of

4
Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa , (2009) 4 SCC 299
5
[Supreme Court - (1969) 2 SCC 262; AIR 1970 SC 150 - A.K. Kraipak vs. Union of India]
6
(i) Maneka Gandhi Vs. Union of India, (1978) SCC 248 (Section 10 passports Act-rule of
natural justice may be followed by giving post decisional opportunity) AIR 1978 SC 579(1),
(Seven-Judge Bench). (ii) Vinay Kumar Tripathi Vs. State of UP 1995 Suppl (1) SCC 552
the equality clause of Article 14. This all suggests that now the principles of natural justice are
grounded in the Constitution

Disciplinary Proceedings against Judicial Officer

A Judicial Officer is not an ordinary government servant. He exercises sovereign judicial functions
and powers of the State. Judicial Officer holds office of great trust and responsibility and his conduct
must be beyond suspicion. Personality of an honest Judicial Officer is ultimate guarantee to justice. A
slightest dishonesty by him may have disastrous effects.7

Under Para 4 All India Judges' Association and Ors. Vs. Union of India (UOI) and Ors8 a stark
distinction is made between Judges and ministers and their staff thereon.

The judicial service is not service in the sense of 'employment'. The judges are not:
employees. As members of the judiciary, they exercise the sovereign judicial power of the
State. They are holders of public offices in the same way as the members of the council of
ministers and the members of the legislature. When it is said that in a democracy such as
ours, the executive, the legislature and the judiciary constitute the three pillars of the
State, what is intended to be conveyed is that the three essential functions of the State
are entrusted to the three organs of the State and each one of them in turn represents the
authority of the State. However, those who exercise the state-power are the ministers, the
legislators and the judges, and not the members of their staff who implement or assist in
implementing their decisions. The council of ministers or the political executive is different
from the secretarial staff or the administrative executive which carries out the decisions of
the political executive. Similarly, the legislators are different from the legislative staff. So
also the Judges from the judicial staff. The parity is between the political executive, the
legislators and the Judges and not between the Judges and the administrative executive.
In some democracies like the U.S.A., members of some State judiciaries are elected as
much as the members of the legislature and the heads of the State. The Judges, at
whatever level they may be, represent the State and its authority unlike the administrative
executive or the members of the other services. The members of the other services,
therefore, cannot be placed on par with the members of the judiciary, either
constitutionally or functionally.

Article 309 to prescribe the service conditions for the members of the Judicial Service. In view of the
separation of the powers under the Constitution, and the need to maintain the independence of the
judiciary to protect and promote democracy and the rule of law, it would have been ideal if the most
dominant power of the executive and the legislature over the judiciary, viz., that of determining its
service conditions had been subjected to some desirable checks and balances.

The power of the state under article 309 to prescribe conditions of service by law or by rules
includes the power to regulate disciplinary proceedings against government servants. Whether the
matter is regulated by rules or under acts of legislature they have the same effect and therefore it is
obligatory for the state to act in conformity with those rules.

Laws governing services of Judicial Officers: Various laws governing the services of Judicial Officers
are as under :

7
High Court of Judicature at Patna Vs. Shiveshwar Narayan and Another, 2011 (3) SLJ 392 (SC)=(2011) 15 SCC
317.
8
AIR1993SC2493.
(1a). Article 235 of the Constitution of India

(1) Articles 309, 310 & 311 of the Constitution of India

(2) The Judicial Officers’ Protection Act, 1850

(3) The Judges (Protection) Act, 1985

(4) Section 52 IPC

(5) Section 77 IPC

(6) Section 228 IPC

(7) Section 197 CrPC

(8) State Judicial Service Rules, 2001

(9) State Higher Judicial Service Rules, 1975

(10) Section 19 of the Prevention of Corruption Act, 1988

(11) Sub-sections (6), (7), (12) of Section 57 of the Evidence Act, 1872

(12) Section 114(e) of the Evidence Act, 1872

(13) Contempt of Courts Act, 1971

(14) High Court Rules,

(15) State Government Servants Conduct Rules.

(16) State Government Servant (Discipline & Appeal) Rules.

(17) Public Servants (Inquiries) Act, 1850

(18) State Class II services (Imposition of Minor Punishments) Rules, 1973

(19) Principles of Natural Justice

(20) State Government Servants Seniority Rules.

(21) State Government Servants Resignation Rules.

(24) State Temporary Government Servants (Termination of Service) Rules.

(25) CCA Rules i.e. Civil Services (Classification, Control & Appeal) Rules.

(26) State Judicial Officers (Retirement on Superannuation) Rules.

(27) Rules in Financial Hand Books

(28) G.Os. & Government Notifications

(29) Judicial Pronouncements

(30) Scheme of Destiny and Divinity.

The departmental proceedings consist of several stages viz., initiation of proceedings, submission of
charge sheet against the delinquent, enquiry in respect of the charges levelled against the
delinquent. The enquiry has to be proper with utmost transparency, and has to be conducted in
delinquents’ knowledge. When the enquiring officer holds the charges to be proved, then that
report has to be given to the delinquent officer who can make a representation before the
disciplinary authority takes further action which may be prejudicial to the delinquent officer. 9

In the case of Oryx Fisheries Private Limited Vs. Union of India and Others10 settles the law of show
cause that the show-cause notice cannot be read hyper technically and it is well settled that it is to
be read reasonably. But one thing is clear that while reading a show-cause notice the person who is
subject to it must get an impression that he will get an effective opportunity to rebut the allegations
contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-
cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice
will be an empty ceremony and he will merely knock his head against the impenetrable wall of
prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it
is issued in a quasi judicial proceeding under a statutory regulation which promises to give the
person proceeded against a reasonable opportunity of defence.”

When after the enquiry is concluded and report is submitted, the disciplinary authority again
investigates the case relied upon the evidences and the report submitted by the enquiry officer.

If the disciplinary authority being not in agreement with the findings of the enquiry
officer a second show cause notice to this petitioner with proposed punishment. The
principles of natural justice would demand that the authority which proposes to decide against the
delinquent officer must give him a hearing. The Departmental Authority is having every right to differ
with the view of the enquiry officer, but in doing so, he will have to give a show cause notice by
recording reasons to differ, if the charges against the delinquent stands proved the investigating
officer has to issue a show cause notice. Delinquent is required to be informed that he is responsible
for such misconduct. He is then required to submit his reply to the disciplinary authority as to why
the Show Cause Notice should not be initiated against him within a stipulated period of time,
prescribed in the Notice.

If the charges against the delinquent stand proved, then disciplinary authority issues a Show cause
Notice to the delinquent proposing the penalty prescribed under the rules. The Show cause notice is
given with the object to afford to the delinquent a reasonable opportunity to reply to the penalty
proposed.

Right of a person to be heard in his defence is the most elementary protection and is the essence of
fair adjudication. Even God did not pass sentence upon Adam before he was called upon to make his
defence. Adam, says God “where art thou, has thou not eaten of the tree whereof I commanded
thee that thou should not eat”.

Notice shall not reflect pre-determined mind. In the case of Suresh Chandra Nanhorya Vs. Rajendra
Rajak,11 it has been ruled by the Hon'ble Supreme Court that "non issue of notice to other side for
hearing is grossly against the settled principles of natural justice. Right of a person to be heard in his
defence is the most elementary protection and is the essence of fair adjudication. Even God did not
pass sentence upon Adam before he was called upon to make his defence. Adam, says God “where
art thou, has thou not eaten of the tree whereof I commanded thee that thou should not eat.

9
Punjab National Bank and Others Vs. Kunj Behari Misra (1998) 7 SCC 84.
10
(2010) 13 SCC 427
11
2006 (65) ALR 323 (SC).
Recording performance evaluation of judicial officers and ministerial staff

Guaranteeing public access to courts and digitisation of court records (ICT integration)

Legal representation to vulnerable section- Mandate of Article 39 A.