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TMI Blog2014 (12) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the department that the writ petition should be thrown on the ground of alternative remedy. Court finds that the order impugned in this writ petition cannot be sustained and is hereby quashed and set aside. - Decided in favour of appellants. - W.P. No. 397 of 2014 - - - Dated:- 15-5-2014 - Harish Tandon, J. Shri Pranab Dutta and Biswajit Mukherjee, Advocates, for the Petitioner. Shri R. Bharadwaj and Mrs. Santa Mitra, Advocates, for the Respondent. ORDER The Court : The order-in-original dated 23rd of April, 2014 passed by the Commissioner of Customs (Airport and Administration), Customs House, Kolkata under Regulation 22 of the Customs House Agents Licensing Regulations, 2004 is assailed by the petitioner in this writ petition primarily on the ground of violation of principles of natural justice and non-adherence of the procedure required by the disciplinary authority while disagreeing with the enquiry report. 2. The authority granted a licence to the petitioner to the act as customs house agents under the Regulation 9 of the aforesaid regulation. The Commissioner of Customs subsequently suspended the said licence on one or more grounds incorporated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of a delinquent officer is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decided against the delinquency officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural justice, as we have already observed, required the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. [emphasis supplied] 6. In the case of Yoginath D. Bagde v. State of Maharashtra and Another reported in (1999) 7 SCC 739 it is held that where the rule is silent relating to the procedure to be adopted where the disciplinary authority proposes to differ with the conclusion of the enquiry officer, an opportunity of hearing should have been given to the delinquent and the points of difference should also be communicated before proceeding further with the disciplinary proceedings, in these words :- 28. In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into Rule 9(2)and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the TENTATIVE reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of not guilty already recorded by the enquiring authority was not liable to be interfered with. [emphasis supplied]. 7. Though the regulation is silent about the procedure to be adopted by the disciplinary authority when proposes to differ with the finding of the enquiry officer, a further opportunity of hearing and communication of the point of difference is in-built mecha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases as mentioned in Sir William Wade s erudite and classic work on Administrative Law 5th Edn. But as that learned author observes (at p. 487), in principle there ought to be an observance of natural justice equally at both stages , and If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial. And he makes reference to the observations of Megarry, J. in Leary v. National Union of Vehicle Builders. Treating with another aspect of the point, that learned Judge said : If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of deprivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man s professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding. 10. As the order-in-original impugned in this writ petition have been passed in gross violation of principles of natural justice, it does not get cured by an appellate court by affording of fullest opportunity to the petitioner to canvass all the points which were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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