Adjudication of administrative disputes: General principles laid down by superior courts

Lakhani at times really inspires and motivates me to express opinions on issues of general importance. Last Friday, he asked me why quasi-judicial officers/adjudication officers commit errors and mistakes while adjudicating upon the disputes arising out of application and implementation of administrative laws?
I told him that many a time, the superior courts have laid down general principles to be applied an followed by such administrative authorities, and some of them we can discuss here. Lakhani became serious and more alert to listen to these ideas.
I told him that common mistakes and errors include a lack of jurisdiction, time-barred claims, wrong determination of a cause, failure to specify violations, wrong application of procedures, lack of evidence, failure to provide for a fair opportunity to the offender, and a lack of a logical approach to interpret and apply law and procedures.
I told Lakhani that first mistake is made when we draft an improper charge-sheet or show-cause notice. For example, alleging something, which cannot be established through facts, law or procedure, say for example such failures arise when a notice is drafted by a non-professional, who is incapable to comprehend that actually what event has occurred and what is that specific wrong for which cognisance is being taken. I distinctly remember a case where an offender was charged with violating a law, which has been repealed much earlier than the occurrence took place, hence occurrence was no more an offence obviously such an error would defeat the purpose of law rather it would amount to abuse of the process of law and if in these circumstances, some action is proposed, the same will fail as it will not stand the test of law.
Similarly, the structure of charge sheet or the show-cause notice is also very important. For example, where legal provisions under which a violation of law is being alleged provide a specific mode or conditions or specifications, they are to be adhered to.
Defect in the show-cause notice: Recently, the Supreme Court in the case of Caltex Vs Collector (1) ruled that a defective show cause notice will make the proceedings illegal. Therefore, proper structuring of charge sheet/show cause notice is a must.
Adherence to time limits: Where law is providing, a timeframe for taking action, that timeframe has to be followed otherwise the action will be hit by the rule of limitation. Courts are very particular about the rule of limitation and a time barred claim will not be permissible.(2)
No one should be condemned unheard: Very common mistake which occurs is that of passing order without providing a fair and adequate opportunity ie, deciding public claims without listening them. It is now a well established principle that no body should be condemned unheard (3). It has long been a received rule (4), that no one is to be condemned, punished, or deprived of his property in any judicial proceeding, unless he had an opportunity of being heard. In the words of the moralist and poet:
-- Quicunque aliquid stauerite, parte inaudita alterd, AEquum licet statuerit, haud aequus fuerit (5).
Ever since the case of Farid Sons,(6) the court has consistently held that where a fair opportunity to defend a case is not provided, the order will amount to violation of the principles of natural justice, and for that person, whose rights are being affected, must be given a notice. This principle has generally been embodied in the acts and provisions are there providing for revealing the grounds on the basis of which someone's rights are being affected, but our observation is that usually the decision-making authorities are in haste to decide the issues and forget to follow this important principle, resultantly such orders are rendered defenceless in the courts. Making of an order against a litigant without affording an opportunity of hearing to him cannot but be removed from the scene to give rise to the making of another order according to law.(7)
Wrong application of rule of procedures: One must remember that rules of procedure are not to be too technically applied, but are reconstructed to foster the cause of justice. It, therefore, follows that a party is to be visited with the penalty of being deprived of a fair trial on merits not by way of penalty except when there is positive evidence of negligence beyond explanation.(8) Proper place of procedure in any system of administration of justice would be to help and not to thwart the grant to the people of their rights - All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy.(9) Judicial or quasi-judicial determination, to inspire confidence and command respect, must be based on record or material beyond suspicion and reproach.(10) The public authorities are created to serve the citizens to serve the citizens and necessary relief cannot and should not be refused merely because a non-essential formality was not complied with. In fact, the public functionaries should guide and help citizens in complying with the formalities if any.(11) Procedures are meant only to regulate and foster the cause of justice and not to thwart the same.(12)
Application of logic: Courts have to protect the interest of the tax-payers as well as that of the public exchequer not withstanding the follies or illogical and some times even casual attitude of the custodians of the public exchequer.(13)
The maxim cited from Lord Coke is peculiarly applicable when the reasonableness of an alleged custom has to be considered : in such a case, it does not follow, from there being now no apparent reason for such custom, that there never was (14).
If, however, it be in tendency contrary to the public good, or prejudicial to the many and beneficial only to a particular person, such custom is and must be repugnant to the law of reason, for it cannot have had a reasonable origin (15).
We may conclude these remarks by calling to mind the well-known saying: lex plus laudatur quando ratione probatur (16) - then is the law most worthy of approval, when it is consonant to reason; and with Lord Coke we may hold it to be generally true, " that the law is unknown to him that knoweth not the reason thereof, and that the known certainty of the law is the safety of all " (17).
Wrong determination of cause: Failure to specify violations: In a Customs dispute, no show cause notice as required under sub-sections (2) and (93) of section 32 of the Act were given to the respondents to show-cause as to why they should not pay the defaulted amount, therefore, demand notices in the absence of statutory show-cause notice were without lawful foundation. It is well-settled proposition of law that a thing required by law to be done in a certain manner, must be done in the same manner as prescribed by law or not at all.
Since prerequisite show-cause notices as required by law have not been served on the respondents, therefore, no straightforward demand notice for sub-sections (2) and (3) of section 32 of the Act are two distinct and separate in each sub-section has been prescribed. Under sub-section (2) for non-levy, short levy or erroneous refund, specific allegations of any collusion between the assessee and the Customs staff has to be levelled with proper particulars in the show-cause notice, which has to be served within three years of the relevant date whereas under sub-section (3) if nonlevy, short levy or erroneous refund is done due to inadvertence, error or misconstruction, then show-cause notice to the importer has to be served within six months of the non-short levy. If such specific particulars are not stated in the notice, the notice would be vague and would not be in consonance with the requirement of sub-sections (2) and (3) of section 32 of the Act.(18) A similar view was taken by the apex court in the case of Ghulam Hussain vs Jamshed Ali.(19)
On hearing all this Lakhani was taken aback, and said, if these rules are really applied, no injustice can take place. I nodded in the affirmative. (1) 2006 SCMR 1519, the court observed that failure of the authorities issuing show cause notice to disclose grounds and reasons may render the show cause notice invalid.
(2) Pakistan Railways v. Ghulam Serwar 1989 SCMR 864:
(3) Errington v Minister of Health 1935 [1KB] 249
(4) It is "an indispensable requirement of justice that the party who has to decide shall hear both sides, giving each an opportunity of hearing what is urged against him" (per Erle, C.J., in Re Brook, 16c. B. N. S., 416).
(5) Sebecam Nedeam, 195 (cited in Boswell's Case, 6 Rep. 48 b, at 52 a; in Bagg's Case, 11 Rep. 93 b, at 99 a; in Re Hammersmith Rent-charge, 4 Ex. 87, at p. 97; in Graham v. Furber, 14 C. B. 134, at p. 165; and in Smith v. R., 3 App. Cas. 614, at p. 624)
(6) Farid Sons vs Chief Controller Imports and Exports, PLD 1961 SC 539
(7) Raza Khan vs Member, Board of Revenue 1999 SCMR 873
(8) Mst. Begum vs Mst. Begum 1989 SCMR 863
(9) Allah Ditta vs Barkat Ali 1992 SCMR 1974
(10) Umar Bakhsh vs Azim Khan 1993 SCMR 374
(11) Syed Israr Ahmed vs Muhammad Shafi 1997 SCMR 1934
(12) Rauf B. Kadri vs State Bank of Pakistan PLD 2002 Supreme Court 1111
(13) Province of Punjab vs Dr Muhammad Daud Khan Tariq 1993 SCMR 508
(14) Arg. Tyson v. Smith, 9 A. & E. 406, at p. 416.
(15) Judgm., Id. at pp. 421, 422. See, further, as to the reasonableness and validity of a custom, post. Chap. X.
(16) 1 Inst. Epil., cited by Ld. Kenyon in Porter v. Bradley, 3 T. R. 143, at146 ; in Dalmer v. Barnard, 7 T. R. 248, at 252 ; and in Doe v. Ewart, 7 A. & E. 636, at p. 657.
(17) 1 Inst. Epil. "Certainty is the mother of repose, and therefore the common law aims at certainty"; per Ld. Hardwicke in Walton v. Tryon, 1 Dick.244, at p. 245.
(18) Assistant Collector Customs vs Messrs Khyber Election Lamps 2001 SCMR 838
(19) Ghulam Hussain vs Jamshed Ali: 2005 SCMR 1001
(The writer is an advocate and is currently working as an associate with Azim ud Din Law Associates, Karachi.)