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TMI Blog2016 (3) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... unity. - Decided against the appellant - W. A. (MD) No. 359 of 2016, C. M. P. (MD) No. 2269 of 2016 - - - Dated:- 3-3-2016 - S. Manikumar And C. T. Selvam, JJ. For the Appellants : Mr. R. Aravindan Senior Panel Counsel for Central Government For the Respondent : Mr. N. Dilip Kumar JUDGMENT ( Judgment of the Court was made by Hon'ble Mr. Justice S. Manikumar ) Material on record discloses that in exercise of the powers conferred under Regulation 23 of the Customs Brokers Licensing Regulations, 2013, the Commissioner of Customs, Chennai VIII Commissionerate, Customs Broker Section, Custom House, Chennai / Appellant No.3, vide proceeding No.F.No.S2/24/2010-CHA, dated 30.03.2015, has ordered, as hereunder:- 14. In view of the discussions above and in exercise of the powers conferred under provisions of Regulation 23 of the Customs Brokers Licensing Regulations, 2013, I prohibit M/s Daniel Samuel Logistics Pvt Ltd., (PAN No.AADCD1437C) from working in any section of the Customs Commissionerate and Customs station under the jurisdiction of Chennai Customs Zone, with immediate effect. However, all documents already filed prior to this order will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants and perused the materials available on record. 4. Contending inter alia that respondent has contravened the Regulation Nos.11 and 18 of the Customs Brokers Licensing Regulations, 2013, Commissioner of Customs, Chennai VIII Commissionerate, Customs Broker Section, Custom House, Chennai / Appellant No.3, in exercise of the powers conferred under Regulation 23 of the Customs Brokers Licensing Regulations, 2013, has prohibited the respondent from working in any Section of the Customs Commissionerate and Customs station, under the jurisdiction of Chennai Customs Zone, with immediate effect. It is also stated that further course of action could be initiated under the Customs Brokers Licensing Regulations, 2013, as per the instructions contained, in para (iii) 5.2 of Board's Circular No.09/2010 Customs, dated 08.04.2010. 5. When the impugned order was tested before the Writ Court, on the ground inter alia that it is violative of principles of natural justice, stating that it is without issuing a show-cause notice and holding an enquiry, the Writ Court relied on a decision of this Court reported in 2013 (288) ELT 497 (Madras) (cited supra) and found that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or agent under the then Customs House Agents Licensing Regulations, 2004, now Customs Brokers Licensing Regulations, 2013, was challenged, on the grounds inter alia that there was no prior show-cause notice. Adverting to the above contention and after considering the relevant Regulations 20 to 23 of the Customs House General Licensing Rule, 1984 and the decision of Hon'ble Apex Court, as to when there would be a legal right to seek for a show-cause notice, before an adverse order is passed, at paragraph No.10 to 17 in Cargomar's case (cited supra), it is held that prior notice is not required in a case, where suspension of licence is resorted to by a competent authority. 8. Meaning of the word suspension extracted from various Dictionaries and the legal meaning, are as follows:- (i) Suspension, as per Wharton s Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices. (ii) Suspension' means, action of debarring or state of being debarred, especially, for a time, from a function or privi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions, as to whether a show-cause notice is required, if suspension is resorted to, as an interim measure. (i) The issue as to whether any show cause notice has to be given before suspending a Government servant, has been considered by this Court, as early as on 1954 in Y.Venkateswarlu v. State of Madras reported in AIR 1954 Mad. 587, wherein, this Court, dissenting with the views expressed by the Nagpur Bench in Provincial Government, C.P., and Berar v. Syed Shamshul Hussain reported in AIR 1949 Nag. 118 (C), at Paragraph 5, held that, Therefore under Art. 311, Cl.(2), the penalties contemplated there, for which a statutory safeguard of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him is provided, are dismissal, removal or reduction in rank. On a reading of the decision of the Supreme Court, it seems to me that in that judgement their Lordships did not intend to equate 'suspension' with 'reduction in rank'. The two ideas are distinct and are intended to apply to different sets of circumstances. I am therefore of opinion that the contention of the learned counsel that suspension is tantamount to reduction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra [1957 SCR 414]. It is unfortunate that this decision was not brought to the notice of the learned Judges of the High Court. Clause (1) of Article 311 will get attracted only when a person who is a member of Civil Service of the Union or an All India Service or a Civil Service of a State is 'dismissed' or 'removed' from service. The provisions of the said clause have no application whatever to a situation where a Government servant has been merely placed under suspension where a Government servant has been merely placed under suspension pending departmental enquiry since such action does not constitute either dismissal or removal from service. The High Court was, therefore, manifestly in error in quashing the order of suspension passed against the respondent on the ground that it was violative of clause (1) of Article 311 of the Constitution. (iv) The Hon'ble Division of Gujarat High Court in Vagadia Parambhai Bhurabhai v. T.J.Trivedi reported in 1987 (1) SLR 648, while dealing with the similar question, at Paragraph 6, held as follows: The above observation makes it abundantly clear that the application of the rule of natural justice of being heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations Rules, 2013, dealing with prohibition, which is extracted hereunder:- Notwithstanding anything contained in these regulations, the Commissioner of Customs may prohibit any customs Broker from working in one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his obligations as laid down under regulation 11 in relation to work in that section or sections. 12. Reading of the said Regulation makes it clear that the Commissioner of Customs may prohibit any customs Broker from working in one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his obligations, as laid down under Regulation 11, in relation to work in that section or sections. Provision makes it clear that there should be a subjective satisfaction of the said authority. It is the submission of the Learned Senior Panel Counsel that Regulation 23 of Customs Brokers Licensing Regulations, 2013, does not state that prior opportunity must be given. Therefore, the said authority can pass an order of prohibition. Regulation 23 is preceded by Regulations 18 to 22, which are as follows:- ''18. Revocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Regulation 19, in appropriate cases where immediate action is required, the Commissioner of Customs can suspend the licence of a Customs Broker and order for an enquiry. By following the procedure set out in Regulation 20, he can revoke the licence. Instead of suspending or revoking the licence, under Regulation 23, the Commissioner of Customs can also prohibit any Customs Broker from working in one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his obligations as laid down under Regulation 11, in relation to work in that section or sections. Where immediate action is required, the Commissioner of Customs may suspend the licence, by which the Customs Broker is totally restrained from acting in his capacity, and whereas, in the case of prohibition, he is restrained to the limited extent from working in one or more sections of the Customs Station, if the Commissioner of Customs is satisfied that such Customs Broker has not fulfilled his obligations as laid down under Regulation 11, in relation to work in that section or sections. Regulation 23 does not even indicate a post decisional opportunity. But, reading of Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpress language. (ii) It is trite that rules of natural justice are not embodied rules. Also, the phrase natural justice is also not capable of a comprehensive definition. Audi alteram partem is only to check the arbitrary exercise of power. The principle implies a duty to act fairly. The Hon'ble Supreme Court in A.K. Kraipak Ors. Vs. Union of India Ors., (1969 (2) SCC 262), observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (iii) In Canara Bank Vs. V.K. Awasthy, reported in 2005 (6) SCC 321 - AIR 2005 SC 2090 - 2005 (3) SCR 81, it has been held as follows:- Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs, in exercise of power under Section 23 of the Customs Brokers Licensing Regulations, 2013, has issued a total prohibition order prohibiting M/s Daniel Samuel Logistics Pvt Ltd., from working in any section of the Customs Commissionerate and Customs station under the jurisdiction of Chennai Customs Zone, with immediate effect. He has no power to prohibit a Customs Broker from working in a section or all sections, as the case may be, but the question that calls up for consideration is, whether the customs broker should be given an opportunity. 16.On the contention that the Hon'ble Division Bench judgment of the Rajasthan High Court has a binding effect, in Sunitha Venkatram vs. Ms.Divya Rayapati, reported in 2015 (2) MLJ (Crl) 385, this Court held as follows:- ''194.Under the Constitutional Scheme, I am empowered to decide, a question of law, independently of what the other High Courts, have decided and for that matter, the decisions of the other High Courts, may have a persuasive value and they do not a binding precedent. It is true that there must be certain degree of certainty in the law, to be interpreted and applied to all the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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