TMI Blog2011 (3) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality - The petitioner having failed to point out any perversity or unreasonableness on the part of respondent Authorities warranting judicial intervention, this Court does not find any merits in the present petition. - 12051 of 2003 - - - Dated:- 31-3-2011 - Harsha Devani and Bela Trivedi, JJ. REPRESENTED BY : Shri D.C. Dave, Advocate, for the Petitioner. Shri P.S. Champaneri, ASG, for the Respondent. [Judgment per : Bela Trivedi, J. (CAV)]. The petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India challenging the judgments and orders passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (hereinafter referred to as the CEGAT ) in Appeal bearing No. C/195/01-Mum [2003 (159) E.L.T. 446 (Tribunal)], whereby the CEGAT had dismissed the Appeal of the petitioner and confirmed the order passed by the Commissioner of Customs, the respondent No. 2 herein, revoking the licence of the petitioner as the Custom House Agent (CHA). 2. Heard learned advocate Mr. D.C. Dave for the petitioner and learned Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the petitioner, Mr. Sunil Kothari of M/s. Prabhat Kiran Mariners, etc. came to be recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as the said Act ). The premise of the said inquiry was to the effect that gypseous alabaster was prohibited for import and therefore the said goods had become liable for confiscation. On the basis of the said inquiry, the respondent No. 2 herein passed an order dated 26th February 1998 under the provisions contained in Regulation 21(2) of the Customs House Agents Licensing Regulations, 1984 (hereinafter referred to as the said Regulations ), suspending the licence of the petitioner as CHA pending the detailed inquiry in to the matter. Thereafter, the petitioner made a representation to the respondent No. 2 seeking revocation of the said order of suspension of the licence, however, the respondent No. 2 did not accept the said representation of the petitioner and continued the suspension of the licence of the petitioner as CHA. It appears that thereafter one show-cause notice came to be served upon the petitioner under Section 124 of the said Act calling upon the petitioner to show cause as to why the penalty should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of Inquiry Officer and ordering revocation of CHA licence issued to the petitioner company and further ordering forfeiture of security in view of the provisions contained in Regulation 21(b)(c) of the said Regulations. Being aggrieved by the said order passed by the respondent No. 2, the petitioner invoked the appellate jurisdiction of the CEGAT by preferring the Appeal being No. C/195/01-Mumbai. 6. It appears that after hearing the petitioner the learned Members of the CEGAT passed the judgment and order dated 12th June, 2002 recording the findings of facts against the petitioner, however differed in their final conclusion on the issue of awarding punishment to the petitioner under Regulation 21 of the said Regulations, inasmuch as the Member (Technical) held that the period of suspension of licence undergone by the petitioner was sufficient punishment, and ordered to restore the licence of the petitioner, whereas the Member (Judicial), considering the seriousness of the case confirmed the order of the Commissioner for revocation of licence of the petitioner. In view of the said difference of opinions between the two Members, the matter was placed before the third Member fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot only unduly harsh but grossly irrational and pervese. 8. However, the learned Assistant Solicitor General of India Mr. P.S. Champaneri, taking us to the impugned orders passed by the Commissioner of Customs as well as the CEGAT as also the affidavit-in-reply filed by the respondents, submitted that there was gross misuse of licence by the petitioner as CHA which had resulted into violation of the said Regulations and considering the gravity of the misconduct on the part of the petitioner, the concerned respondents had awarded appropriate punishment, which does not call for any interference by this Court. Shri Champaneri, relying upon the judgments of the Hon ble Supreme Court in the case of Chairman, All India Railway Recruitment Board and Anrs. v. K. Shyam Kumar and Ors. reported in (2010) 6 SCC 614 and in the case of Union of India Anr. v. G. Ganayutham reported in (1997) 7 SCC 463, submitted that the scope of judicial review is very limited as regards the quantum of punishment imposed on the delinquent by the appropriate Authorities and there being no error in appreciating the evidence or in the conclusion arrived at by the Tribunal, the Court should not interfere with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of administrative action and of proportionality of punishment have been considered by the Hon ble Supreme Court in catena of decisions. The Hon ble Supreme Court, in the case of Union of India Anr. v. G. Ganayutham, reported in (1997) 7 Supreme Court Cases P. 463 considering the position of proportionality in administrative law in England and India, observed thus : 31. The current position of proportionality in administrative law in England and India can be summarised as follows;- (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go in to the correctness of the choice made by the administrator amongst the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e need not therefore go into the guestion of proportionality . There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to irrationality , there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in outrageous defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain Ranjit Thakur . 33. In Ranjit Thakur, this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in B.C. Chaturvedi v. Union of India [1995 (6) SCC 749], a three Judge Bench said the same thing as follows (SCC P.762 para 18) The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusions on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands proved. {See Sangeroid Remedies Ltd. v. Union of India Ors. [1999 (1) SCC 259 = 1998 (103) E.L.T. 5 (S.C.)]}. 17.1 The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order. 13. The Hon ble Supreme Court, in the recent case of Chairman-cum-Managing Director, Coal India Ltd. Anr. v. Mukul Kumar Choudhuri Ors. reported in AIR 2010 Supreme Court 75, has held thus : 26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault 14. In view of the above principles laid down by the Hon ble Supreme Court in various judgments it clearly transpires that the judicial review of administrative action or of proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable, irration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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