9911796707
TMI Blog2002 (7) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has alleged to being allowed a person by name Naveen who is not their employee to file the documents for clearance purposes. It is stated that the appellant did not indulge in any offence of serious nature or of a grave lapse of diversion or misuse of funds, forgery or any prohibited goods in violation of the procedure calling for a stern action to put the appellant under suspension with immediate effect. It is stated that such an action of placing the appellant under suspension by resorting to Regulation 21(2) has caused serious hardship to the appellant and it is violative of principles of natural justice. It is stated that Regulation 23 ought to have been first resorted to and only in the rarest case 21(2) is required to be invoked, that is, in appropriate cases where immediate action is necessary and where an enquiry on such agent is pending or contemplated. Although the impugned order does narrate the facts and circumstances of one Naveen having been entrusted with papers for the purpose of clearing the goods but that does not call for such a severe action of suspending the licence. Furthermore, the agent has already executed a bank guarantee of Rs. 2 lakhs and has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 21(1) is not questioned in the writ petition. It cannot also be disputed that under Regulation 21(2) the Collector has the power to suspend the licence of a Customs House Agent when enquiry against such agent is pending or contemplated where immediate action is necessary. 8. In my opinion the power to suspend the licence is to be exercised where immediate action is necessary. A plain reading of the impugned order does not show that the Collector applied his mind to consider whether immediate action was necessary in the case. The order also does not state that the licence was suspended because immediate action was necessary. I do not express here one way or the other as to whether on the facts of the case immediate action was necessary or was not necessary because it is for the Collector to take decision in that regard. 9. In the absence of any indication that there was application of mind by the Collector on the aspect as to whether immediate action was necessary. In my opinion, the impugned order cannot be sustained. The Collector gets jurisdiction to suspend the licence in cases where immediate action is necessary. In this view I consider it just and appropriate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cannot be applied and requires to be set aside which we order accordingly. However, the Commissioner is at liberty to proceed afresh in the matter by following the principles of natural justice and procedure laid down under CHALR 1984. Appeal is allowed on the above terms. 4. We notice that the Regulation 21(2) empowers the Commissioner in any appropriate case where immediate action is necessary as to suspend the licence of CHA where an enquiry on such agents is pending or contemplated. In the case of N.C. Singha Sons (supra), the Hon ble Calcutta High Court noted that : A perusal of the order dated 9th June, 1998 passed by the respondents No. 2 clearly suggests that the power under Regulation 21(2) was resorted to apparently without spelling out in the impugned order as to whether any immediate action was necessary so as to suspend the licence of the appellants with immediate effect. Undoubtedly a plain reading of the Regulation 21(2) clearly stipulates that the requirement to take immediate action is a sine qua non to the suspension of a licence under Regulation 21(2) because such suspension is not by way of any punishment, as is contemplated by Regulation 21(2), but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e put in suspension and also has satisfied himself about the instance of prima facie case warranting immediate stern action under the provisions of Custom House Agents Licensing Regulations, 1984. 6. In the light of the ratio of the judgments cited above we are required to see as to whether the Commissioner was justified and had reasons to put the appellant under suspension in terms of provisions of the Regulation 21(2). In all the judgments the only ground for setting aside the order was that the suspension order did not spell out the facts to take immediate action of suspension of the licence where an enquiry against such agent is pending or contemplated. In the present case, we are not faced with a question as to whether the action of suspension is justified or not in the terms of the facts. Counsel conceded that there was a violation but was trying to say that the offence is not a serious one calling for Regulation 21(2). The Rule (sic) 21(2) does not contemplate situation of serious offence or minor one but it empowers the Commissioner in appropriate cases where immediate action is necessary to suspend the licence where an enquiry against such agent is pending or contemplate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
