Audi alteram partem

  1. The respondents after their appointment had been rendering their services for a pretty long time and had been receiving the emoluments from the concerned department but all of a sudden they were terminated without affording them an opportunity of hearing thereby violating the principle of audi  alteram  partem which is almost a principle of universal application. Inspector General of Police and 3 others v. Aurangzeb and 4 others 2001 SCR 526 (A) PLJ 2000 SC (AJK) 174 ref.
  2. Before passing an adverse order against a person or imposing a penalty, it is essential to give a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that services of a civil servant can be terminated without serving any notice upon him. Inspector Gen. of Police others v. Aurangzeb and others 2001 SCR 526 (B)
  3. Audi alteram partem is supposed to be the part of every enactment if its application has not been specifically excluded in it — Rehabilitation Act, 1956 is applicable in AJ&K — The principle of natural justice has been specifically provided — The departure from it shall make any action taken under these two laws void ab initio. Custodian of Evacuee Property AJ&K and Another v. Fatima Bibi and 15 others 2003 SCR 88 (B)
  4. Natural justice — Before termination of service the respondents were not given an opportunity being heard — The principle of audi alteram partem, which is of universal application, has been violated — The service of respondents has been duly confirmed by the Selection Committee — Budget for the posts was also sanctioned — A valuable right had accrued to respondents which could not have been snatched away without providing an opportunity of being heard. Chairman MDA Muzaffarabad & another v. Sajjad Ah. Sheikh and 2 others 2003 SCR 377 (B)
  5. Punishment of termination from service is a major punishment — At the time of awarding punishment the appellants was never heard by officiating S.P. — It was enjoined upon the officiating Superintendent of Police to give a show cause notice to the appellant to hear his point of view — By not doing so, the principle of audi alteram partem was violated which is presumed to be in every statute unless the same is clearly excluded by statute itself. Amjad Hussain Khan v. DIG Police Range and another 2004 SCR 151 (C)
  6. It is settled proposition of law that before passing an adverse order against a person or imposing a penalty, it is essential to give a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that services of a civil servant could be terminated without serving any notice upon him. Chairman Pearl Development authority v. Tariq Inqalabi & 7 others 2005 SCR 186 (B) 2001 SCR 526 rel.
  7. Right of hearing of a civil servant — A fundamental right — Void ab initio order can be recalled without hearing — Hearing based on principle of audi alterm partem  is a fundamental right of every person. Held: No adverse order can be passed against a civil servant without providing him an opportunity of hearing — The Constitution guarantees fundamental rights but when any order has been passed in violation of rules or it is void ab initio such an order can be cancelled or taken away without issuing a notice or hearing. Muhammad Khurshid & another v. Secretary Education Schools & 4 others 2011 SCR 175 (C)
  8. Contention — that the judgment has been handed down without providing the appellants an opportunity of hearing — written arguments were filed at belated stage by the appellants, Held: that if in the light of the record and the legal and the factual propositions, the stand of a party is well established and the matter is resolved after consideration of the record, in such cases it cannot be said that the principle of audi alteram partem has been violated. Muhammad Rehman & another v. Azad Govt. & 8 others 2014 SCR 298 (A) 2000 SCR 263 ref.
  9. Writ — appointment of Chairman MDA — removal from office — contention that principle of audi alteram partem violated — Held: no-doubt, the doctrine of audi alteram partem is the basic golden principle of administration of justice but while applying the principle, one should be mindful to take into consideration the legal and factual proposition of each case. Further held: if according to the facts of the case and clear statutory provisions, a party has opted and accepted the conditions of appointment resting upon the pleasure of the appointing authority and the authority is vested with the powers to remove him at any time, in such case if removal order is passed, the question of audi alteram partem does not arise.  When it is established from the record that the party will take a specific stand in defence which is already known and clear, in that case, principle of audi alteram partem is not attracted. AJK Govt. v. Dr. M. Amin 2014 SCR 258 (E) 2000 SCR 263, ref.
  10. Principle — Islamic Law — Devine Right — the right of hearing has been provided by Almighty Allah to His creatures. M. Yousaf v. Arshad Mehmood & another 2014 SCR 1521 (C)
  11. Correction in date of birth in matriculation certificate — The civil servant challenged his retirement notification dated 15.8.2014 through which he has been retired from service w.e.f. 6.10.2014 — His actual date of birth is 7.10.1956 instead of 7.10.1954 and he should have been retired from service in the year 2016 — The government notification in respect of the retirement of the appellant dated 15.8.2014, is illegal and against the record — Contention of the civil servant is  that at the time of issuance of the retirement notification —  no opportunity of hearing was provided to the civil servant — The principle of audi alteram partem’ has grossly been violated. Held: The appellant/civil servant during his service never approached any competent forum for correction of entry of his date of birth in the matriculation certificate. He approached the Civil Court only ten months prior to the age of superannuation for correction of his date of birth in the matriculation certificate, which shows malafide of the appellant. Further held: that under section 12 of the AJ&K Civil Servants Act, 1976 no right of hearing is provided to a civil servant in such like matters.  Under the proviso to sub-section (iii) of section 12 of Act, 1976, the right of hearing shall be provided to such civil servants, who are being retired after completion of ten years qualifying service for pensionary or other benefits as envisaged in sub-section 12 (I) of section 12 of the Act, 1976. Further held: As no such eventuality prevails in the case in hand, therefore, the question of personal hearing is not available to the appellant as he has been retired under section 12(ii) of Act, 1976 after attaining the age of superannuation, i.e., sixtieth years of his age. Muhammad Abdul Rehman Abbasi v. Azad Govt. & 7 others 2015 SCR 1083  (A&B)
  12. Order acted upon — created legal right — recalling unilaterally — according to the celebrated enunciated principle of law a final order acted upon which has created legal right cannot be rescinded or recalled, unilaterally. Mst. Sahib Jan v. I. G Police & others 2015 SCR 1440 (C)
  13. No adverse order can be passed against a person who is not a party in the proceedings before any Court or Tribunal. Held: The hearing based on principle of audi alteram partem is a fundamental right of every person and no one can be deprived of such right. M. Rafique Chaudhary & another v. M. Yaqoob Janjua 2015 SCR 1514 (A) 2011 SCR 175 & 2002 SCR 128, rel.
  14. Retirement of civil servant — in public interest — right of public servant to be informed and heard — So far as the most heated argument [in the case], regarding non-providing the opportunity of hearing is concerned,  no doubt under the provisions of section 12 of Act, 1976, for retiring a civil servant in public interest the requirement is that no such order will be made unless the competent Authority has  informed in writing  of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it. Taskeen Naz v. Fehmida Begum & 11 others 2016 SCR 1436 (D)
  15. Retirement of middle pass primary teachers — in public interest — after 25 years of service — due to non-acquisition of qualification of metric — contention that no opportunity  of hearing was provided before retirement. Held: The factual proposition clearly depicts that all the middle pass Primary Teachers from the day on were aware of the fact that for continuation of service, they will have to improve their qualification and pass the matriculation examination. Thus, it cannot be said that they have been surprisingly retired without providing the opportunity of hearing. Taskeen Naz v. Fehmida Begum & 11 others 2016 SCR 1436 (E)
  16. Contention that without impleading the candidates recommended by the Public Service Commission no adverse order can be passed — Held: that the principle relied upon is not of universal application — there are some exceptions to this general rule of basic administration of justice such like when there is no legally vested right to be affected. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (E) 2000 SCMR 907 & PLJ 1987 SC(AJ&K) 57, rel.
  17. When in the light of facts and circumstances of the case the version and defence of the person is obviously known and determinable in that case mere absence of the party will not be a ground to leave the case undecided — Even without calling such party the matter can be resolved. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (F) PLD 1988 SC 645, PLJ 2000 SC (AJ&K) 60 & 2014 SCR 258, rel.
  18. —UMSIT— Appointments — discrimination — argument that appointments made against the posts which have not been advertised, be set aside to eliminate the discrimination— Held:neither appointment orders challenged nor appointees madeparty—it will against the principle of natural justice and they cannot be penalized for mal administration of University. Qurat-ul-Ain vs UMSIT Kotli & others 2018 SCR 994 (B)
  19. —No one can be  condemned unheard—writ  issued without hearing Finance department —being a necessary party—no notice issued to the Finance Department. No notice was served upon the Finance Department, meaning thereby, the opportunity of hearing has not been provided to the appellant he has been condemned unheard. As huge amount of Government exchequer is involved in the matter, therefore, the High Court had to provide the opportunity of hearing to the appellant being a necessary party. Finance Department vs Ch. Muhammad Naseer & others 2018 SCR 1045 (B)
  20. —no one should be condemned unheard—right of hearing is a principle of natural justice—Service Appeal—dismissed for non-prosecution—application given for restoration on ground that the counsel for appellant was appearing before the High Court and the appellant, due to illness could not appear, the absence was not intentional—the application dismissed by the Service Tribunal–the application was decided without hearing the counsel for the appellant, which is against principle of natural justice. Muhammad Kabeer Khan v. Azad Govt. & others 2019 SCR 610 (A)
  21.  —Admission in MBBS —cancelled— contention that the appellant has not been heard—Held: this principle is not attracted in the case in hand because if notice is issued to her for hearing even then she could not justify clear-cut violation of law, as the appellant, has not availed the seat against which she was nominated, hence, she is not entitled to any discretionary relief. Ayesha Mukhtar v. Secretary Health &  others 2019 SCR 679 (C) PLD 1973 SC 236 & 2014 SCR 382 rel
  22. —See Azad Govt. & others  v. Kh. Muhammad Saleem Bismal & others 2022 SCR 430 (G)
  23. —Audi alteram partem is principle of natural justice—Audi alteram partem is presumed as part of every enactment, unless specifically excluded—Under this principle no adverse order can be passed against any without giving right of hearing—It is repeatedly laid down principle of law that unless specifically excluded, the principle of natural justice which is known as the audi alteram partem shall be presumed to be the part of every enactment. According to this principle, no adverse order can be passed against any person without providing him the right of hearing. It is divine right. Even the Allah Almighty who is omni potent, is so kind that he also provided this right to His creatures. Kh. M.Maqbool War v. Sardar M. Javed Ayoub 2022 SCR 1299 (M) AIR 1985 SC 1416; 2015 SCR 1521 rel.
  24. —Audi Alteram partem—fair trial—relieving of Advocate General by the High Court in contempt without providing him opportunity of hearing and fair trial—order of the High court was set aside by the Supreme Court—Held: the learned High Court should at least follow the minimum standard of principle of natural justice and provide an opportunity of hearing to the appellant, thus, the impugned order of the High Court is against the basic principle of natural justice i.e., audi alteram partem and not maintainable on this ground. Further, the impugned order has also been issued in violation of constitutionally recognized right to fair trial, hence, we are constrained to set aside the same to the extent of relieving the Advocate General of the office and suspension of his license of Advocacy. Kh. M.Maqbool War v. Sardar M. Javed Ayoub 2022 SCR 1299 (N)
  25. — the appointment order of the private respondent — was issued contrary to the merit list, therefore, no legal right was accrued to her and before rescinding her appointment order, providing the opportunity of hearing to her, was not necessary. Nosheen Khawaja v. Azad Govt. & others 2023 SCR 133 (B) PLJ 2000 SC (AJK) 60, 2016 SCR 1599 ref.
  26. — principle of — see Faheem Afsar versus Muhammad Khursheed & another 2023 SCR 1063 (C)
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