TMI Blog2015 (12) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry was held in breach of principles of natural justice without any proof of prejudice being caused to the respondent, cannot be sustained. The nonobservance of the principles of natural justice in this case would not mean the whole inquiry is wiped out or the inquiry cannot be held from the stage at which the breach is committed and after rectifying it. That wrong is capable of being remedied. After all the adverse material are disclosed to the Agent and the persons whose version is proposed to be relied upon are made available for questioning by the Appellant, the inquiry can proceed and be concluded. That would be a fair course to adopt so as to protect both sides. - 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 - Petition disposed of. - CUSTOMS APPEAL NO.1 OF 2013 - - - Dated:- 22-7-2015 - S.C. DHARMADHIKARI G.S. KULKARNI, JJ. For the Petitioner : Mr. Pradeep S.Jetly For the Respondent : Mr.H.R.Shetty ORDER P.C. : 1. This appeal of the Revenue challenges the order passed by the Customs, Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to record statements of certain persons in support of the charges against the agent with the specific understanding given to the agent or his representative that those persons whose statements have been recorded would be made available at the further inquiry or copies of this statements would be handed over so that the chargesheeted agent could adopt appropriate course in law. In the second eventuality the Law does not permit the inquiry itself to be set at naught and the revocation set aside following which the licence should be restored. In all such matters the breach of principles of natural justice or violation thereof by itself and without anything more, is not fatal. The Law is very clear inasmuch as the Court must conclude as to which principle of natural justice has been violated, whether this principle is so fundamental and basic going to the root of the case and its violation must vitiate the entire proceedings. The inquiry being held without any notice of hearing and concluded in the absence of chargesheeted agent or employee, could be a case where inquiry proceedings can be held to be vitiated. However, during the course of inquiry and at various stages if there is brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r be permitted to exclude the presentation of a litigants' defence. 15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasijudicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fairplay and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Raov. Govt. of A.P. [AIR 1966 SC 828 : (1966) 2 SCR 172] it is not necessary to quash the order merely because of violation of principles of natural justice. 22. In M.C. Mehta [(1999) 6 SCC 237] it was pointed out that at one time, it was held in Ridge v.Baldwin [1964 AC 40 : (1963) 2 All ER 66 (HL)] that breach of principles of natural justice was in itself treated as prejudice and that no other de facto prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan[(1980) 4 SCC 379] Chinnappa Reddy, J. followed Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 (HL)] and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allege breach of principles of natural justice but also demonstrate that prejudice is caused by such breach. This is for the simple reason that any departure or every breach does not necessarily result in miscarriage of justice or gross failure of justice. Further, the principles of natural justice are not a straitjacket formula. Which principles of natural justice or which facet of the same is applicable, depends upon the nature of the lis, the statute under which an adjudication is undertaken and several other factors. This has been now firmly established in the decision of Bar Council of India v/s High Court of Kerala reported in (2004) 6 SCC 311: AIR 2004 SC.2227. In that case, in the SCC report, this is what is held: 49. In N.K. Prasada v. Govt. of India [(2004) 6 SCC 299] this Court observed: (SCC p. 308, paras 2425) 24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is denial of the request to cross examine the witnesses in a inquiry, without anything more, by such denial alone, it will not be enough to conclude that principles of natural justice have been violated. Therefore, the judgments relied upon by Shri Kantawala must be seen in the factual backdrop and peculiar circumstances of the assessee's case before this Court. 6. We had specifically put to Mr.Shetty, learned Counsel appearing on behalf of the respondent, during the course of arguments that if the respondentagent admits the violation and breach of the regulations based on which the licence is issued, then, being out of business and from 15.10.2009 till date instead of inquiry being held denovo or further from such stage it was held to be vitiated, the permanent revocation can be set aside, but by maintaining the same for specific period or restricting it to the period already undergone namely from 15.10.2009 till today. Mr.Shetty has no clear instructions in that regard. Hence, we do not adopt this course, else the Court would be accused of extending misplaced sympathy and which is likely to be misused in future cases by others. 7. In these circumstances the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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