2018 (6) TMI 389 - HC - FEMA

Validity of proceedings - non-recording of reasons and its non-communication - whether the adjudicating Authority is bound to record his reasons for formation of an opinion under sub-Rule 3 of Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 in writing and also communicate the same to the noticee if required by the noticee before proceeding with an enquiry? Held that - The adjudicating Authority is not under any statutory obligation to communicate his reasons for forming an opinion to conduct an enquiry under sub-Rule 3 of Rule 4 of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. We may draw an analogy with the provisions of the Prevention of Money-Laundering Act, 2002. Whenever a statute requires a particular thing to be done in a particular manner, it is a trite position of law that it should be done in that manner alone and not otherwise. The provisions of sub-Rule 3 of Rule 4 in contra distinction to the provisions of the Section 5(1) of the Prevention of Money-Laundering Act, 2002, do not require the reasons to be recorded in writing. If we are to read into the provision, such a requirement, the same in our considered opinion would lead to disastrous results, where notices under various enactments which provide for enquiry on the basis of a subjective satisfaction of the adjudicating Authority or the enquiry officer or the Disciplinary Authority would take a stand that those Authorities should also record their reasons for forming an opinion and communicate the same.

Issues Involved:
1. Interpretation of Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000.
2. Requirement of recording and communicating reasons for the formation of an opinion by the adjudicating authority.
3. Validity of the notice issued for a personal hearing.

Detailed Analysis:

1. Interpretation of Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000:
The appellant challenged the notice issued for a personal hearing on the grounds that the adjudicating authority did not adhere to Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. The appellant argued that Rule 4 requires the authority to form an opinion on the objections raised and record reasons for taking further proceedings, which should be communicated to the petitioner. The respondents contended that the appellant's interpretation of Rule 4 was erroneous and that the rule does not mandate recording and communicating reasons for the formation of the opinion.

2. Requirement of Recording and Communicating Reasons:
The appellant argued that the adjudicating authority must record reasons for the opinion formed after considering the explanation provided by the noticee, as per Rule 4(3). The appellant relied on judgments from the Bombay High Court, which supported this interpretation. The respondents, however, pointed out that Rule 4(3) does not explicitly require recording and communicating reasons. They argued that sub-Rule 4 of Rule 4 provides sufficient safeguards by requiring the authority to explain the alleged contraventions to the noticee during the hearing.

The court noted that the Bombay High Court had read into the rules the requirement of recording and communicating reasons, but the Madras High Court disagreed with this interpretation. The court emphasized that a plain reading of the rules does not support the appellant's interpretation and that sub-Rule 4 provides adequate safeguards.

3. Validity of the Notice Issued for a Personal Hearing:
The court examined whether the notice issued for a personal hearing was valid despite the appellant's claims. It was observed that the adjudicating authority had issued a notice for a personal hearing after considering the explanation provided by the appellant. The court found that the authority had complied with the requirements of Rule 4(3) by forming an opinion that an in-depth examination was necessary, which justified the personal hearing.

The court concluded that the adjudicating authority is not statutorily obligated to record and communicate reasons for forming an opinion to conduct an enquiry under Rule 4(3). The court upheld the validity of the notice issued for a personal hearing and dismissed the appeal, agreeing with the learned Single Judge's decision.

Conclusion:
The appeal was dismissed, and the court held that the adjudicating authority is not required to record and communicate reasons for forming an opinion under Rule 4(3) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. The notice issued for a personal hearing was deemed valid, and the appellant's interpretation of the rules was found to be incorrect.

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