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TMI Blog2015 (12) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was requested. The matter was, then, adjourned to 26th /27th March,2008. But the allegation is that no notice of this hearing was given to the agent. Thus, the inquiry concluded in gross violation of principles of natural justice. 3. The Tribunal found that these facts are uncontroverted and from the records it is revealed that on 19.3.2008 there was a hearing held and in the absence of the agent. Statements of some persons were recorded. They were asked to appear again. Further the agent was notified and informed that a personal hearing would be held later but on that date the persons whose statements were recorded could not attend and, therefore, they were not made available for cross examination. The Tribunal concluded that whether the notices of further hearing were given to those persons or not, has not been substantiated from the record. 4. After having heard Mr.Jetly, learned Counsel appearing for the Revenue and Mr.Shetty, learned Counsel appearing for the respondent at some length, we find a clear inconsistency in the order of the Tribunal. The fundamental error that the Tribunal has committed is that it did not note the difference between the chargesheeted agent bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 10. It is to be further noted that in the appeal before the Appellate Authority findings of the Inquiry Officer were challenged and, therefore, the question of any prejudice does not arise. Since employee had the opportunity to meet the stand of the Bank, it was to his advantage, and opportunity for personal hearing was also granted, though Regulation 6(18) does not even speak to grant such an opportunity. Keeping in view what was observed in B. Karunakara's case (supra) there was no question of violation of principles of natural justice. 13. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 14. The expressions "natural justice" and "legal just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasijudicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. 19. 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 the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally there was no material placed by the employee to show as to how he has been prejudiced. Though in all cases the postdecisional hearing cannot be a substitute for predecisional hearing, in the case at hand the position is different. The position was illuminatingly stated by this Court in Managing Director, ECIL, Hyderabad and Ors. vs. B. Karunakara and Ors. [1993 (4) SCC 727 at para 31] which reads as follows: "Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the nonsupply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the nonsupply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defend the proceedings which are inherent in such adjudication are in no way prejudiced, leave alone the conclusion of the department. The assessee could have in the teeth of this material and which was placed by it before the department was in a position to defend itself effectively. It had in its possession several documents including from the suppliers abroad. It is in these circumstances and where several opportunities were given to the assessee/appellant to make submissions with regard to the findings of the report of the expert panel that refusal to permit cross examination of some of the panel members was justified. 16. We do not see any violation of the principles of natural justice. We do not see that the assessee was prejudiced by refusal of the authorities to permit cross examination of other panel members. In the light of the admitted factual position and finding that imported cranes were not within the permissible time limit but were more than 10 years old that the benefit of the license and of the notification was rightly denied. 17. We have not been addressed anything on the merits of the matter, save and except urging that the orders under challenge are vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than nonissue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 47275), as follows: (SCC p. 58, para 31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth." Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03) 4 SCC 557 : 2003 SCC (L&S) 507] .) 50. In Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672] whereupon reliance has been placed by Mr Reddy, this Court held: (SCC p. 477, para 97) "97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed." 22. The Hon'ble Supreme Court followed and applied this rule in the case of Ajit Kumar Nag v/s General Manager (P. J.) Indian Oil Corporation Ltd, Haldiya and Ors, reported in AIR 2005 S. C. page 4217 ( See paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an proceed and be concluded. That would be a fair course to adopt so as to protect both sides. Since Mr.Jetly agrees that the Inquiry Officer will allow all the opportunities in accordance with the Regulations and principles of natural justice that we direct the Inquiry Officer to hand over copies of the statements of the persons recorded on 19.3.2008 and if requested by the Agentrespondent, make those persons available for cross examination by the agent. The Inquiry officer shall proceed from that stage and thereafter, the Inquiry Officer to endeavour and conclude it as expeditiously as possible and within a period of three months from the date notified by him for the agent and the persons to remain present. 8. We clarify that till the Inquiry is concluded and which must be concluded within the time stipulated above, the order of suspension of licence stands, but without prejudice to the rights and contentions of both sides. After the Inquiry Officer submits a report, it would be open for both sides to take such steps as are permissible in law. We clarify that we have not expressed any opinion on the rival contentions as far as charges and their merits are concerned, each of them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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