2016 (4) TMI 1472 - HC - FEMA

Penalty imposed for violation of the provisions of FERA - argument of breach of the principles of natural justice as petitioner was not afforded a reasonable opportunity to present his case - HELD THAT - We are not in a position to accept the contention on behalf of the petitioner that no notice of the proceedings or of the date of hearing of the proceedings was served upon the petitioner. Since the petitioner chose not to participate in the proceedings, the question of making over documents by the authorities relied upon at the hearing to the petitioner does not arise. Had the petitioner participated in the proceedings he would not have been made over the documents at the hearing. The request for cross-examination also is of no assistance as the petitioner was not present in the hearing to undertake the cross-examination of the witness on behalf of the authorities. The impugned order is appealable. It gives reasons. The petitioner has chosen not to prefer an appeal. The petitioner has chosen to file a writ petition. The scope of enquiry in a writ jurisdiction is limited. The contention of breach of principles of natural justice cannot be accepted in the facts and circumstances of this case. No other ground has been canvassed at the hearing. Thus there is no infirmity in the order impugned.

Summary

Issues:
1. Breach of principles of natural justice in imposing penalty under Foreign Exchange Regulation Act, 1973.

The judgment delivered by the High Court of Calcutta pertains to a case where the petitioner challenged an order passed by the Special Director of the Enforcement Directorate imposing a penalty of Rs.50 lakhs for violating the provisions of the Foreign Exchange Regulation Act, 1973. The petitioner contended that the order was vitiated by a breach of natural justice as he was not given a reasonable opportunity to present his case. The petitioner, through his senior advocate, argued that he was unwell and hospitalized during crucial periods, and therefore, was unable to participate in the proceedings. The advocate also claimed that the petitioner was not provided with all the documents relied upon by the authorities and was denied the right of cross-examination. The petitioner requested the court to set aside the order and remand the case for a fresh trial, indicating his willingness to participate. However, the court noted that the petitioner had knowledge of the proceedings but chose not to participate, and therefore, rejected the contention of lack of notice or opportunity. The court emphasized that the impugned order was appealable, but the petitioner opted for a writ petition instead. Since the petitioner failed to substantiate his claims of hospitalization and non-receipt of notices, the court concluded that there was no breach of natural justice in the case. The court dismissed the writ petition and allowed the authorities to proceed with the implementation of the penalty order.

Overall, the judgment highlights the importance of active participation in legal proceedings and the consequences of choosing not to engage in the process. It underscores the limited scope of review in writ jurisdiction and the need for substantial evidence to support claims of procedural irregularities. The court's decision emphasizes that parties must avail themselves of available remedies, such as appeals, before seeking judicial intervention through writ petitions.