JUDGMENT Arijit Pasayat, C.J.
1. In view of a divergence of views between two Division Benches on the question, whether the third proviso to Section 4-M of the Imports and Exports (Control) act, 1947 (in short the 'Act') requires grant of an opportunity, that is, in the nature of a personal hearing before exercising discretion to waive part or full of the penalty, reference has been made to a larger Bench. While in Amritlal Ganpatrai v. Union of India (CWP 2890/87) decided on 25th September 1987, it was observed that in the absence of any statutory requirement to that effect opportunity was not to be granted. In the present writ petition, the prima facie view of the learned Judges hearing the matter was that principles of natural justice require grant of such an opportunity. We may note that in M/s. Jesus Sales Corporation v. Union of India and Others , the same issue was considered and it was held by a Full Bench that an opportunity has to be given before deciding application of the third proviso to Section 4-M of the Act. It was 2nd proviso to Section 4-M of the Act at the relevant point of time, when the Full Bench took up the matter. The matter was carried to the Apex Court and in Union of India v. Jesus Sales Corporation , it was observed that it will be difficult to say that in every case denial of an opportunity would be violative of the principles of natural justice.
2. We have heard Mr. G.L. Rawal, learned counsel for the petitioner.
Though by passage of time the petition has become infructuous, yet in view of the fact that similar controversy has come up frequently while dealing with identical provisions, we have heard him at length. It was his submission that though on a cursory reading of the decision of the Apex Court as referred to above, it would appear that the requirement was held to be not there, but that was rendered in the facts of that particular case and cannot have universal application. We are in agreement with this submission as a detailed reading of the judgment shows the peculiar factual position which was considered by the Supreme Court and in the background facts of that case, the decision was rendered. it is trite law that a decision is an authority for what it decided and not for what logically flows from the judgment.
3. Judgments of Courts are not to be construed as Statutes. Judicial utterances are made in the settings of the facts of a particular case. There is always peril in treating words of a judgment as though they are words in a legislative enactment. Natural justice is another name for commonsense justice. Rules of natural justice are not condified cannone. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
4. The expression 'natural justice and legal justice' do not present a water-tight classification. it is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law.
5. The adherence to principle of natural justice as recognised by all civilized States is of supreme importance when a quasi-juridical body embarks on determining disputes between the parties. These principles are well-settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that none should be condemned unheard. Notice is the first lib of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed against the person in absentia becomes wholly vitiated. Thus it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play.
6. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial quasi-judicial authority while making an order affection those rights. These rules are intended to prevent such authority from doing injustice.
7. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2All ER 337), Lord Wright observed that it was not desirable to attempt 'to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give a full and fair opportunity' to every party of being heard.
8. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179: 80 LJKB 796), where Lord Loreburn, L.C. observed as follows:
"Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. it will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of act, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial... The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari."
9. Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that "the Board can obtain information in any way they think best always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Solbourne, LO in Spackman v. Plustead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows:
"No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. he is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. he must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice."
10. Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done'.
11. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statue under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses in fraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
12. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg.1.8, Lord Cranworth defined it as 'universal justice'. In James Dunber Smith v. her majesty the Queen (1877-78(3) App. Case 614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy Council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plustead District Board of Works (1884-85(10) App. Case 229, 240), Earl of Salbourne, S.C. Preferred the phrase 'the substantial requirement of justice'. In Vionet v. Barrett (1885(55) LJRD 39, 41) Lord Esher, MR defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health (1890(24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet v. Barret (supra) chose to define natural justice as 'fundamental justice'. In Ridge v. Baldwin (1963(1) WB 569, 578) Harman LJ, in the Court of Appeal described natural justice as 'fairplay in action'. This was noted in Maneka Gandhi v. Union of India . In re R.N. (An Infaot) (1967(2) B617, 530), Lord Parker, CJ. preferred to describe natural justice as 'a duty to act fairly'. In Fairmount Investment Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russel of Willown somewhat picturesquely described natural justice as 'a fair crack of the whip' while Geoffrey Lane, LJ. in Regina v. Secretary of State for Home Affairs Ex parte Hosenball (1977(1) WLR 766) preferred the homely phrase 'common fairness'.
13. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is nemo judex in causa sua' or nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co. Rep. 114, that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co. Litt. 1418), that is, 'no man ought to be a judge in his own cause, because he cannot act as Judge and at the same time be a party;. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule and that is the rule with which we are concerned in this case is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing, A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell' case: (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, 'justice should no only be done but should manifestly be seen to be done'.
14. Even if grant of an opportunity is not specifically provided for it has to be read into the unoccupied interstices and unless specifically excluded principles of natural justice have to be applied. Even if a statute is silent and there are no positive words in the Act or Rules spelling out the need to hear the party whose rights and interests are likely to be affected, the requirement to follow the fair procedure before taking a decision must be read into the statute, unless the statute provides otherwise. Reference is accordingly disposed of.
In the normal course, we would have asked the Division Bench to hear the matter. But it has been submitted by Mr. Rawal the petition has become infructuous by passage of time. We therefore dispose it of.