9911796707
TMI Blog1994 (11) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... es made of sandalwood" and "refuse for joss sticks". It is not necessary to consider the facts in detail in this application in so far as they relate to the merits of the allegations in this petition. Suffice it to say that the consignment was seized after examination on 25-02-1994. After an enquiry on 17-5-1994 a Memo was issued by the Collector of Customs alleging that on the basis of enquiry conducted and statements from various persons it was revealed that the petitioner and his employees had failed to discharge their responsibility/obligations cast on them by Regulation 14 of the Regulations amounting to gross misconduct within the meaning of that Regulation. An enquiry against the Firm M/s. Shaikh Pandit and of which the petitioner claims to be the proprietor, Tushar Pandit and S.K. Jha being contemplated the Collector in exercise of powers vested on him under Regulation 21(2) of the Regulations ordered the suspension of the petitioner's Licence with immediate effect. It was also recorded that it was an appropriate case where immediate action was necessary. 4.The petitioner sought to exonerate himself from all liability as alleged in the suspension memo by three separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o strict proof thereof. We reserve our right to deal with the same. However, denying the veracity of purported statements of various persons we reply to the Show Cause without prejudice to our contentions." 9.On 28-7-1994, the Enquiry Officer issued a notice fixing the date of hearing on 02-8-1994. The petitioner Tushar Pandit, Chief Executive of M/s. Shaikh Pandit and S.K. Jha Dock Sircar of M/s. Shaikh Pandit were all examined. The evidence adduced by each of the three persons was recorded by the Enquiry Officer. The statement of each of these three persons was checked by them and found to be correct. Each statement contained an endorsement to this effect as well as the signature of the person concerned which was countersigned by the Enquiry Officer. 10.On 12-8-1994 the matter was mentioned before the Court by the Customs Authorities for extension of the period for completing the proceedings. Such extension was granted for a further period of ten days by T. Chatterjee, J. On 16-8-1994, the Enquiry Officer submitted his report to the Collector. The Enquiry Officer found the petitioner responsible for misdeclaration and participation in smuggling out rough sandalwood render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition should not be entertained as the petitioner had an alternative remedy by way of an appeal under the Act before the Customs, Central Excise and Gold (Control) Appellate Tribunal under Section 129B of the Customs Act, 1962. On the merits the respondents have submitted that the peitioner had not in fact, made any grievance regarding the non-supply of documents in the course of the hearing before the Enquiry Officer. It is also submitted that in the event, the impugned order was set aside by the Court, the respondents should be given the liberty of concluding the procedings in such a manner and within such time as the Court may direct and that the suspension order should continue until the passing of the final order. 15.As far as the preliminary objection raised by the respondents is conerned, the existence of an alternative remedy does not debar the Court from entertaining the Writ application under Article 226. This principle is well recognised. It is also well settled that when an order is challenged on the ground that it has been passed in violation of the principles of natural justice the Court will normally not deny the petitioner relief under Article 226 (See : State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording his findings. (6) The Collector of Customs shall furnish to the Customs House Agent a copy of the report of the Assistant Collector of Customs and shall require the Customs House Agent to submit within the specified period not being less than sixty days any representation that he may wish to make against the findings of the Assistant Collector of Customs. (7) The Collector shall after considering the report of the inquiry, and the representation thereon, if any, made by the Customs House Agent pass such orders as he deems fit. (8) Any Customs House Agent aggrieved by any decision or order passed under Regulation 21 or sub-regulation (7) of Regulation 23, may appeal under Section 129A of the Customs Act, 1962, to the Customs and Central Excise and Gold (Control) Appellate Tribunal established under Section 129(1) of Customs Act, 1962." 17.In his inquiry report the Inquiry Officer has in fact, relied upon the records and statements of the stevedores and others without giving the petitioner an opportunity of cross-examining such persons. It is true in the statement of the petitioner as recorded by the Inquiry Officer, there does not appear to be any demand for cross-exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. While the appeal from the conviction in the criminal case was pending on the basis of the conviction the employee was dismissed from service. But the Supreme Court set aside the conviction. The order of dismissal being based on the conviction could not be sustained and was set aside by the President who issued an order directing that the disciplinary enquiry should be continued under sub-rule 5(b) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules and also directed that the suspension should continue until the termination of such proceedings. 21.The employee challenged this order and the continuation of his suspension under Article 226 of the Constitution. It was this challenge which was considered by the Supreme Court. The Supreme Court formulated the issue as follows : "The only question debated before us was and this raised a rather serious controversy - whether the third part of the impugned order was valid : Was it competent to the President, in the circumstances of the case, to continue the suspension of the appellant under sub-rule (5)(b) of Rule 10 of the CCS (CCA) Rules, 1965? Even if it was not, could this part of the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts were nullities it is, as if there were no effective Inquiry report nor an effective order of dismissal. 27. The petitioner however has relied upon the earlier case of Om Prakash Gupta v. State of Uttar Pradesh : A.I.R. 1955 SC 600 to contend that the Supreme Court had expressly negatived this argument. That case also related to disciplinary proceedings against a Government servant. Pending the disciplinary proceedings the order of suspension had been passed and the disciplinary proceedings ended with the order of dismissal. The employee challenged the order of dismissal as illegal by way of a suit. The suit was decreed. No doubt it was argued on behalf of the respondents that the enquiry could only end with a valid order which would replace the order of suspension and that as the order of dismissal had been set aside on the ground of illegality, the order of dismissal should be regarded as a nullity and non-existent in the eye of law. But the Supreme Court did not in fact, consider what would be the position if the final order of dismissal were in fact a nullity. What the Supreme Court held was : "The order of suspension made against the appellant was clearly one made pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
