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TMI Blog1961 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition before P.B. Mukherji, J., which eventually failed. Various objections to the validity of the order were raised, all of which were negatived by the learned Judge. The objections were dealt with, partly in the order under appeal, and partly in the order made in a connected application being Matter No. 140 of the 1956 (Palriwala Brother Ltd. v. Collector of Customs, Calcutta, disposed of by the same learned Judge on December 33, 1957 (See ). That order is an annexure to the paper book of the present appeal to which reference will be required to be made for disposal of this appeal. Counsel for the appellant stressed in the main two points without abandoning others and invited our decision on them. They are, first, that the proceedings and the resultant order of the Additional Collector of Customs have been vitiated by reason of the violation of the principles of natural justice, in that the appellant had not had a fair hearing before the adjudication was made; and secondly, the order cannot be sustained on the ground of bias, since the person who made it had acted both as Judge and prosecutor. In order to examine the validity of these two contentions, it becomes nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratap Singh, an employee of Palriwala Brothers Ltd., and a sum of ₹ 15,351/12as. had been arranged to be paid through a French Bank by a director of Palriwala Brothers Ltd. The shipping bill bearing No. E458 (AP) and the relevant guarantee and G. I. R. forms had been signed by the appellant who at material time worked as export superintendent of Palriwala Brothers Ltd. Accordingly a show Cause Memo dated March 3, 1956, was issued by S.K. Srivastava, Assistant Collector of Customs and Superintendent, Preventive Service. The Memo, or letter bore No. S-37-272/55P, and it called upon the appellant to explain in writing within a week from the date of its receipt why the goods in question should not be confiscated and penal action taken against him under Section 167 (8) and (37) of the Sea Customs Act. The written explanation, if any, was required to be submitted along with original or certified copies of documents upon which reliance was proposed to be placed, and the appellant was directed to inform whether he wished to be heard personally in the matter. Similar show Cause Memos were served on other persons, including the directors of Palriwala Brothers Ltd., Gouri Sankar Palr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the other still pending, which though not directly relevant, acquire importance in view of the contentions raised in this appeal. Besides, there were certain connected proceedings covered by the earlier order of P.B. Mukharji, J. in Matter No. 140 of 1956 (See ) by which the question of bias raised in this case was treated as having been disposed of. Indeed the learned Judge does not deal with the question of bias at all in the present case. Only he observes as follows : Some of the points urged in this petition are already covered by my judgment delivered on the 23rd December, 1957, in Matter No. 140 of 1956 (See ) Mr. Deb for the applicant has not pressed those points on which I have already come to a decision in that case. He does not abandon those points but having regard to my views already expressed in that judgment, he does not press, them before me. On the question of bias we are, therefore, required to refer to the learned Judge's earlier order, as well as to the order made in appeal from that decision (Appeal from Original Order No. 87 of 1958) dated June 27, 1961. Before dealing with the question of denial of fair hearing or of bias, it would be conven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Show Cause Memo or letter, dated March 3, 1956, bore No. S. 37-272/55P. The Alca case was commenced by Show Cause Memo, or letter, dated February 7, 1956, bearing No. S. 37-255/55P (Pt. II). On March 6 and 17, 1956, the appellant submitted his explanations through his solicitors to the two Show Cause Memos. The explanation, dated March 6, 1956, had reference to the Alca case, and the explanation, dated March 17, 1956, referred to the Hainan Case. The explanation in both was identical. So far the Show Cause Memos as well as the explanations were treated separately; but on April 13, 1956, the respondent S.K. Srivastava who was presumably in charge of investigation of these proceedings, addressed a letter to Messrs. Khaitan and Co., the appellant's Solicitor, intimating that the Customs had further information that the appellant had not only signed the shipping bills in question, but also had signed' several other documents, including letters, to the employees of Palriwala Brothers Ltd. and associate firms and had dealt with certain account books. It was said that whereas the appellant had signed other papers and documents as B. K. Kejriwala or Bal Kissen Kejriwal , he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant failing to turn up for the interview on the appointed date, the case would be decided on the available materials, he clearly meant to say that it was the Alca case which was meant to be so decides. On June 18, 1956, the interview was held at which the appellant's solicitors were present and in that interview discussions took place between them and the Customs authorities. The context would therefore clearly repel the inference that the interview had anything to do with the Hainan case. The shift in position that the interview actually related to the Hainan case is wholly impermissible. On June 25, 1956, the two proceedings appear again to have been mixed up by the Customs authorities. By a letter of the same date, bearing No. S. 37-255/55P (Pt. II), S.K. Srivastava wrote to the appellant's solicitors saying that when their client, meaning the appellant, appeared in connection with another matter his attention had been drawn to certain facts. The facts recited were, (a) that an employee of M/S Palriwala Brothers. Ltd. by name S.N. Mandal had been kept concealed in the Asoka Ice and Cold Storage Co. Ltd. at Benaras, a firm belonging to the Kejriwala famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is allowed. We shall, however, send one of our representatives tomorrow who will formally ask for time on this account. It is thus clear that when the first opportunity presented itself after the interview of June 18, 1956, request was made to the Customs authorities for inspection of documents and for postponing the proposed interview. It is important to recall in this connection that this letter written by the appellant's solicitors was dated July 2, 1957. Although the order of adjudication, in the present case bore date June 19, 1956, it was, on the Customs authorities own admission, not dispatched Until July 25, 1956, and according to the appellant, it was not received until July 30, 1956. Whatever the actual date of receipt of the order of adjudication may be, the real question is at what stage, if at all did the appellant ask for inspection of documents. There is nothing on the record to indicate that the letter of July 2, 1956, to which we have just referred was written after having known that an order of adjudication had already been made on June 19, 1956, The learned Trial Judge seems to have thought that the massive array of facts and correspondence establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e challenge the statements made in the letters of the appellant's solicitors, bearing date July 2, 1956, and July 26, 1956. It is not that the Customs authorities never replied. We find on August 6, 1956, S.K Srivastava writing again. By letter no. S. 37-255/55P (Pt. II) which obviously connects it with the Alca case, the correspondence is resumed but in this letter nothing is said about the inspection asked for, and there is no protest, no denial of the allegations made in the letter of the appellant's solicitors, dated July 2 and July 26, 1956. S.K. Srivastaya's letter, dated August 6, 1956, was cryptic to a degree. It merely said, You are requested to direct your client Shri Balkissen Kejriwal to take inspection of the documents utilised against him from the office of the Rummaging Inspector (Intelligence), Customs House at 15/1, Strand Road, Calcutta at 11 a.m. on 10th August, 1956. It is by no means clear what exactly was meant to be said by this letter. If the documents had already been utilised against the appellant there would be no sense whatever in offering inspection after the adjudication, if the documents were proposed to be utilised in the other case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the person proceeded against should be given an opportunity of explaining the facts which have been held up in evidence against him, and the present proceedings being not a criminal prosecution, it would be unfair to an administrative authority to require them to give at every step an opportunity to controvert every fact. It was said that until after the adjudication, there was no request for inspection of document. We have dealt with this aspect of the matter, and having regard to the view we take of the correspondence as a whole, we cannot possibly accept the contention that there was no confusion which might have misled the appellant. The two proceedings were up to a stage concurrently proceeded with; we have seen that although initially they were kept separate, they got mixed up in course of time, and it would not be an unreasonable inference in the circumstances of this case that the appellant had been misled to think that the interview which he actually had was in respect of one case, rather than another. In any event, if the Customs authorities thought that the interview held on June 18, 1956, related to the present case, there was nothing to prevent them from saying so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this as an authority for the proposition that fair hearing has two elements, both of which are justiciable. Whether a person has had a fair hearing can, be gone into by the Court; and the Court's conscience must be satisfied that an Administrative Tribunal charged with the duty of deciding a dispute has conformed to fundamental principles of natural justice. The view we have taken of the correspondence seems to he strengthened by the observations of the Supreme Court in the case and the Court's conscience is not satisfied that despite the mix-up and the muddle the appellant has had a fair hearing. In this connection one may usefully recall the observations of Maugham, L.J. in the case of Errington v. Minister of Health, (1935) 1 KB 249. After haying discussed the question that fell for decision these observations were made by the noble Lord; The only question that remains is whether the Court should come to the conclusion that the interests of the applicants have been substantially prejudiced by what has been done, because the quashing of the Order is, of course, a matter of discretion of the Court I do not think it has been proved that the statements which were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was convicted and sentenced by the Magistrate. It has been alleged on behalf of the appellant that S.K. Srivastava had himself as well as through his agents taken part in the investigation with the consequence that he came to be biased and prejudiced against him. The materials, it is said, obtained in the course of search and the facts, transpiring in the course of investigation prejudiced him and completely disqualified him to adjudicate in the present proceedings. On behalf of the respondents it has been asserted that besides merely passing on information to the police officer, S.K. Srivastava did nothing in the matter; he denied that he had taken any part in the investigation; there was thus nothing to disqualify him to adjudge the proceedings. It is to be observed that M.A. Rangaswami was Additional Collector of Customs till the forenoon of June 18, 1956. S.K. Srivastava took over as Additional Collector of Customs in the course of the day, and within a few hours of his taking over, he held the interview, and within, a day of his assumption of office as Additional Collector of Customs, he made the impugned order. The sequence of events assumes significanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He gave evidence which shows that he had much to do with the investigation culminating in the criminal proceedings prior to the date of adjudication. He said that he had directed the taking of samples from the consignment in question which was illegally attempted to be shipped out of the country. He directed all necessary documents to be collected, ordered the samples to be sent for examination and report; he directed seizure of the goods about to be shipped, and after a preliminary enquiry, made a complaint to the police. Meanwhile enquiry in departmental proceedings continued where after he issued the Show Cause Memos. He said in cross-examination, that he had obtained search warrant from the Chief presidency Magistrate. He seized about 300 files from the office of Parliwala Bros. Ltd., and had some thing to do with the applications made to this Court in proceedings connected with the seizure of documents and eventual prosecution. He stated further that he took into account the results of the investigation so far as they were relevant for the purpose of adjudication. If all this is taken to account, we cannot have any doubt that S.K. Srivastava took a large part in the investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard. The view taken is that even in administrative hearing an accuser cannot be permitted to act as judge and the purity of such hearing can only be maintained by excluding participation as judges of all who might reasonably be suspected of being biassed. P.B. Mukharji, J., referred to the decision of Black, J., reported in Federal Trade Commission v. Cement Institute, (1948) 333 US 683 at pp. 700-703 : 92 Law Ed 1010 at pp. 1034-35. The question there was whether a Commission had disqualified itself in consequence of certain views expressed on the matter for decision by some of the members in another capacity. It was held that if the Commission held certain views, it did not mean that the minds of its members were irrevocably closed on the subject of the respondent's case. It was, therefore, held that the decision of that body would not amount to violation of the procedural due process. The learned Judge thought that the view expressed by Black, J., applied to the case where a person having had investigated a matter came thereafter to judge the issues in an administrative, capacity. Reliance was placed upon what is called the Doctrine of Necessity. We are afraid there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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