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TMI Blog1993 (9) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... has made written applications which have been considered and, therefore, there is no failure of natural justice. Dismissed. 25thSd/- Sunanda Bhandare Sd/- S. Ranganathan September, 1987" 3.On 9th November, 1989, a Division Bench consisting of B.N. Kirpal and C.L. Chaudhary, JJ., while noticing the earlier order passed by the Division Bench in Amrutlal Ganpatram Panchal's case (supra), took a different view. The said Division Bench observed that the appellate authority should give an oral hearing before deciding an application mentioned in the second proviso to Section 4-M of the Imports and Exports (Control) Act, 1947. The Division Bench further observed that decision of the application has serious consequences on the final outcome of the main appeal. Principles of natural justice would, therefore, require an oral hearing to be granted. The court also observed that "the view which we are taking in conflict with the view expressed by another Division Bench in Amrutlal Ganpatrai's case (supra), we are of the opinion that, subject to orders of Hon'ble the Chief Justice, that case should be referred to a Full Bench." On the request of the Division Bench, this Larger Bench has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as it may impose. The Appellate authority may, after giving to the appellant a(2) reasonable opportunity of being heard, if he so desires, and after making such further inquiries, if any, as it may consider necessary, pass such orders as it thinks fit, confirming, modifying or reversing the decisioin or order appealed against, or may send back the case, with such directions as it may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessaary : Provided that an order enhancing or imposing a penalty or confiscating goods or materials of a greater value shall not be made under this section unless the appellant has had an opportunity of making a representation, and if he so desires, of being heard in his defence." 8.The principle of audi alteram partem has been commented upon, discussed and dealt with in various judgments of the Supreme Court and other High Courts. Our endeavour in this reference would be to extract ratio of these Judgments to arrive at the conclusion whether oral hearing by the tribunal is imperative in the case of this nature. 9.Learned counsel referred to and relied upon another decision of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noble and not newfangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system." 12.The Court has further mentioned that the aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. 13.In the said case, the court has referred to the leading English case Ridge v. Baldwin - 1963 (2) All ER 66. In this case, it is held that good administration demands fairplay in action and this simple desideratum is the fount of natural justice. 14.The Court further observed in para 56 of the judgment, as under : "Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why. Lord Denning expressed the paramount policy consideration behind this rule of public law (while dealing with the nemo judex aspect) with expressiveness : "Justice must be rooted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the substance only. Moreover it need not do everything itself .It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report." 16.Learned counsel further referred to and relied upon Shivraj Fine Art Litho Works v. Assistant Collector, Central Excise, - 1990 (49) E.L.T. 51 (Bom.). The Division Bench of Bombay High Court at Nagpur Bench, held that the application for waiving the pre-deposit of duty without hearing an application dismissed, and thereafter appeal dismissed for non-compliance with the condition of pre-deposit, without hearing the petitioner was clearly bad in law being violative of the principles of natural justice. 17.Learned counsel for the petitioner Mr. Rawal further referred to and relied upon Smart P. Ltd. v. Income-Tax Appellate Tribunal, Vol. 182, 1990 I.T.R. 384. In this case, the Full Bench of this Court has held that it is now well settled that, even where hearing is not specifically provided, the principles of natural justice have to be complied with before any order adverse to any party is passed especially by a judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations levelled against a licensee should be made after affording him an adequate opportunity of hearing. In order to comply with the principle of natural justice - audi alteram partem - the licensee must be given a full and true disclosure of the facts sought to be used against him and the hearing afforded must be adequate and substantial in order to enable him to safeguard his rights. In other words, the hearing must be fair, proper and in substance and not mere formal. If such a hearing is denied, the action will be struck down as void." 20.Learned counsel for the petitioner has also cited a Constitution Bench judgment of the Supreme Court - Union of India v. Jyoti Prakash Mitter, AIR 1971 S.C. 1093. In this case, the Constitution Bench has held that normally, an opportunity for an oral hearing should be given to the Judge whose age is in question, and the question should be decided by the President on consideration of such materials as may be placed by the Judge concerned and the evidence against him after the same is disclosed to him. 21.Learned counsel has drawn our attention to The King v. Tribunal of Appeal under the Housing Act, 1919, 1920 King's Bench Division, 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the petitioner's substantive statutory right of appeal is taken away because of non-deposit of the duty, in that event, the petitioner ought to be granted oral hearing by the concerned authority. 25.Learned counsel for the petitioner has also drawn our attention to Bombay High Court, Mahindra and Mahindra Ltd. v. Union of India - 1990 (50) E.L.T. 338 (Bom.). In this case, while dealing with Sections 35B and 35F of the Central Excises Salt Act, 1944, the Court observed as under : "It is not proper for the authority to merely read the stay application and pass order adverse against the petitioners. The authority should realise that an application for stay is a proceeding independent of the appeal filed against the order of the Assistant Collector. The Collector of Central Excise (Appeals) shall hear the parties when an application for stay is filed, and only after hearing the oral submissions should dispose of the stay application. The two orders passed by the Collector of Central Excise (Appeals) refusing to waive the pre-deposit required under Section 35F of the Excise Act therefore cannot be sustained. The consequential order dismissing one of the appeal also cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural justice and that at every stage a person is entitled to a personal hearing. Moreover, when the appeal against the order of the Customs authority is filed beyond limitation, and the appellate authority has dismissed the appeal as barred by limitation without hearing the appellant, there is no violation of the rules of natural justice. 30.Mr. Lokur has also placed reliance on Madhya Pradesh Industries Ltd. v. Union of India and Others - AIR 1966 S.C. 671. In this case the court has held : "The principle of natural justice requires that a quasi-judicial tribunal should not make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. R. 55 Mineral Concession Rules (1960) recognizes the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is oral hearing and its elimination an unusual exception. 36.In that case, the Court while dealing with the vires of a rule relating to review in the highest court observed that the goal to be attained is maximisation of judicial time and celerity of disposal of review petitions. And, despite the heavier burden thrown on the judges during the hours outside court sittings by agreeing to read through and discuss the review petitions for themselves, there is obvious acceleration of disposal of review petitions without intrusion into court time. The court observed that to disperse and re-arrange regular Benches especially when most of the review petitions are repeat performances in futility, is a judicial circus the court can ill afford. The rule is rational, the injury is marginal. 37.Stressing on the importance of written submissions, the court observed that, the magic of the spoken word, the power of the Socratic process and the instant clarity of the bar-Bench dialogue are too precious to be parted with, although a bad advocate can successfully spoil a good case if the judges rely only on oral arguments for weaving their decision. The written brief, before careful judges, can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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