9911796707
TMI Blog1995 (7) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise the necessary supervision to ensure proper conduct of their employee, Mr. Gul Gurbax Malkani, and had thus, contravened the provisions of Regulations 14(a), 14(k) and 20(7) of the said Regulations. The cause for initiation of enquiry and proceedings arose when, in the month of January 1989, one of their employees Mr. Gul Malkani was found in the Baggage Hall of the Customs Air Cargo Complex, unauthorisedly clearing the Baggage Declaration Form No. 153, filled in by one Mr. Siddique Hussain Sahib Katingari as authorised representative of her mother Smt. Bibi Safiya, whose unaccompanied baggage was to be cleared. On issuance of the Notice to show cause, the appellants accepted that Mr. Gul Malkani was in their employment and was posted at the Air Cargo Complex, but contended that said Mr. Malkani, was merely helping the said authorised person to get the clearance done, and had not undertaken the work as the employee of the CHA firm, and that mere rendering of a help to a person not conversant with the procedure, could not be termed as contravention of Regulation 14(a). They also pleaded that they had been exercising full and adequate supervision over their employees and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antiate his plea. As regards the legal issues raised, the ld. SDR, has submitted (which during the course of submission is also admitted by the ld. advocate for the appellant) that, two simultaneous proceedings were initiated under the Regulations, against the appellant, and in the other one, where also, the order has been passed on the same day as to the date of impugned order, the Collector of Customs has ordered suspension of the licence for a specified period. In his submission, when the order for suspension of the licence is passed on the same day, in another proceedings, by the same Collector, non-reiteration of the same, in the impugned order, could not nullify the same as not in conformity with the provisions of Regulation 21(1) of the Regulations. He also pleads that the reading of the said provisions shows that the Collector is empowered to either (i) suspend or (ii) revoke the CHA licence, or (iii) can forfeit the security deposit. As regards, showing of the leniency, he pleads that no discretion is given to forfeit part of the security deposit. In his submission, it is not the penalty imposed where quantum could be interfered with. 6. Considering the submissions and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified period by virtue of the powers under the Regulation 21(1) of the Regulations, whereas in the impugned order, the security deposit is forfeited. Both the orders are passed by the same officer. It would have been proper for the said officer to make an observation in the impugned order that because suspension of the licence is duly ordered in the other proceedings, no separate order was being passed and that would have met with the technical requirement. All the same such hyper technicalities, if not complied with by an Executive Head, holding of the order as bad in law, would not be justified by overlooking the admitted factual position, particularly of simultaneous passing of two orders. 8. Though, the submission of the Ld. SDR that the word or used earlier would also govern the empowerment to order for forfeiture of security deposit alone, cannot be endorsed or accepted; considering the specific and special circumstances, the plea raised by the appellants as to invalidity of the impugned order also cannot be accepted and is, therefore, rejected. 9. On merits, three charges have been levelled against the appellant (i) their employee had been attending to the clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents and all such documents would be filed according to the convenience in the office . They also mentioned that the accounts were being prepared by the Accountant as and when he came to the office. The lack of regularity in maintenance of accounts is clear, and there is no reason to interfere with the finding of the Collector. 13. Thus, on merits, there is nothing which warrants interference with the finding arrived at by the Collector. 14. An alternate plea is made to appropriately reduce the quantum of the amount forfeited. Once again reading Regulation 21(1), the empowerment to the Collector is for forfeiting the security deposit. The same is not qualified with any prefix or suffix of the type, that he may forfeit such amount of the security deposit as he may deem it proper. Thus, though he has discretion to order or not to order the forfeiture of security deposit, if he chooses to order forfeiture thereof vide Regulation 21(1), he has to order forfeiture of entire deposit. As is evident from Regulation 11 and Form No. 51 prescribed thereunder, the security deposit is made for faithful behaviour of the Agent and their employees, as also to reimburse the loss to the ..... 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