TMI Blog2018 (5) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... omic offences are offences against the society at large and should be curbed. However, if the respondents had sufficient incriminating materials against the petitioner they would have surely supplied copies thereof to the petitioner in compliance with the principles of natural justice and would have proceeded with the adjudication process. The very conduct of the respondents raises a strong suspicion in mind that the respondents have no such material which would establish the charge levelled against the petitioner. This is one of the reasons why I am of the opinion that it will not be to the detriment of public interest or contrary to the interest of justice if the impugned show cause notice is quashed. ‘Justice delayed is justice denied’ is not a cliché. The impugned show cause notice dated 14 January, 1991 is quashed along with the notices of hearing. The adjudication proceeding stands dropped against the petitioner. - W.P. No. 322 of 2015 - - - Dated:- 17-5-2018 - Arijit Banerjee, J. Shri Ratnanko Banerjee, Senior Advocate, D.N. Sharma, Ratnesh Kr. Rai, A. Basu, Ms. Urmila Chakraborty and Srinjay Bhattacharya, Advocates, for the Petitioner. Shri Ranjan Kr. Roy, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the show cause notice has been taken by the respondent authorities. There is no adjudication and no hearing has been held in connection with the proceeding. This has been put on record by the Learned Advocates of the petitioner in their letters dated 17 May, 2005, 27 February, 2015, 10 March, 2015 and 11 March, 2015. 6. During the pendency of the proceeding, Mr. G.L. Mehta, one of the noticees passed away on July 4, 1998. Hence, the proceeding has abated against him. The FERA has been repealed with effect from June 1, 2000 with a sun set clause for two years which came to an end on June 1, 2002. No proceeding can be initiated under FERA after May 31, 2002. The adjudication is yet to start. The proceeding does not survive also by reason of repeal of FERA. 7. In the Affidavit-in-Opposition filed on behalf of the respondent authorities, it is admitted that no document has been supplied to the petitioner. There is absolutely no explanation as to why there has been a delay of 26 years in proceeding with the adjudication process. No case has been made out even prima facie as to why the show cause notice should be proceeded with against the writ petitioner. The challenge in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rai, Learned Advocate appearing for the respondents submitted that the show cause notice was issued well within the sun set period provided in the Foreign Exchange Management Act, 1999 (in short FEMA ). He referred to Rule 3 of the Adjudication Proceedings and Appeal Rules, 1974 framed by the Central Government in exercise of power under Section 79 of FEMA. He submitted that prior to holding an adjudication proceeding, a notice is to be issued requiring the person concerned to show cause as to why adjudication proceeding should not be initiated against him. After considering his reply to the show cause notice, the authority is required to form an opinion as to whether or not adjudication proceeding should be commenced against him. In the present case, the show cause notice was issued well within the prescribed time. Hence, the contention that the show cause notice does not survive the repeal of FERA has no merit. Prosecution or adjudication commences when the concerned authority takes notice of the violation of law and issues notice to show cause calling for explanation. In this connection, Learned Advocate relied on the decision of the Hon ble Supreme Court in the case of S.K. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the disciplinary proceeding should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when the proceedings are unnecessarily prolonged without any fault on his part. In considering whether delay has vitiated the disciplinary proceeding, the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained, prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against the employee. Normally, disciplinary proceedings should be allowed to take its own course as per relevant rules, but then, delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceeding. Ultimately, the Court has to balance these diverse considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERA. The hearing commenced on November 29, 2004. The petitioner challenged the show cause notice and the notice of hearing on the ground of delay in commencing the proceeding. The Delhi High Court allowed the writ petition striking down the show cause notice and quashing the proceeding holding that there was no explanation on the part of the authority for the delay in the adjudication process. It was further held that the writ Court should exercise jurisdiction as it would be unfair to relegate the petitioner to the remedy available under the relevant enactment. 22. In Pankaj Kumar v. State of Maharashtra (supra), the Hon ble Supreme Court held that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the Court has to perform the balancing act upon taking into consideration all the attendant circumstances and determine in each case whether the right to speedy trial has been denied in a given case. Where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It was, however, observed that the only consequence of infringement of the right to speedy trial is not quashing of the charges and/or conviction. In a given case, the facts including the nature of offence may be such that quashing of charges may not be in the interest of justice. Every offence, more so, economic offences those relating to public officials and food adulteration is an offence against society. In cases, where quashing of charges/conviction may not be in the interest of justice, it shall be open to the Court to pass such appropriate orders as may be deemed just in the circumstances of the case. The Hon ble Court went on to lay down certain guidelines to be followed in deciding whether there has been inordinate delay in proceeding with a criminal case and whether the accused has been so prejudiced by such delay not occasioned by him that it would be unfair to allow the prosecution to continue, warranting quashing of the criminal proceeding. 26. Learned Counsel for the respondents relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, this case is not germane to the present case since the question that arose in that case is not involved in the present case. 28. In Standard Chartered Bank v. Directorate of Enforcement (supra), the Hon ble Supreme Court refused to issue a writ of prohibition restraining the FERA authority from proceeding with the adjudication under Section 50 of the FERA. It was observed that it was for the appellants to put forward their defence before the concerned authority and it was for that authority to decide the relevant aspects while deciding to impose or not to impose any penalty on the appellants. The appellants had a right of appeal under Section 52 of the FERA to the Appellate Board and a further right of appeal to the High Court under Section 54 of the FERA. It was for the appellants to put forward their defence before the adjudicating authority and pursue the same in accordance with law. 29. Coming to the facts of the present case, the show cause notice was issued on 14 January, 1991. It was replied to by the petitioner on 15 February, 1991. In the reply the petitioner specifically stated that at no material point of time, he had any connection with the affairs of Thomas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son. The writ petition was filed on 17 March, 2015. 30. It will be seen from the facts noted above that the first notice of hearing was issued almost 9 years after issuance of the show cause notice. The petitioner contended that unless copies of the relevant documents relied upon by the authorities were supplied to him, he would not be able to defend himself meaningfully at the adjudication proceeding. There is nothing on record to show that the authorities supplied such copies to the petitioner. There is not even such an averment in the affidavit filed by the respondents in this proceeding. The respondents remained completely silent after issuance of the notice of hearing. Several letters were written by the petitioner or his Advocates between 1999 and 2015. There is nothing on record to show that the same were replied to by the authorities. 16 years after 1999 a notice of hearing dated 13 February, 2015 was issued. Upon the petitioner expressing his inability to attend such hearing in the absence of copies of the relevant documents, a further notice of hearing dated 4 March, 2015 was issued by the authorities. The conduct of the authorities makes it amply clear that they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnection, reliance of the Learned Counsel on the decision of the Hon ble Apex Court in Ikbal Hussen s case (supra) is misplaced. As noted above, in the judgment in that case, paragraph 29 of the judgment in A.R. Antulay s case was quoted. Paragraph 29 of the judgment in A.R. Antulay s case merely recorded the submission of Mr. Jethmalani Learned Counsel representing one of the appellants. He had submitted that an accused cannot raise the plea of delay if he has never made a demand for speedy trial and a plea that proceedings against him be quashed on the ground that delay has taken place is not sustainable if the record shows that he acquiesced in the delay and never asked for an expeditious disposal. Mr. Jethmalani had submitted that in India the demand Rule must be rigorously enforced and no one can be permitted to complain that speedy trial was denied when he never demanded it. This submission of Mr. Jethmalani was rejected by the Constitution Bench as recorded in sub-para 7 under Paragraph 86 of the judgment in A.R. Antulay s case. The Hon ble Supreme Court observed as follows:- 7. We cannot recognize or give effect to, what is called the demand Rule. An accused cannot t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient incriminating materials against the petitioner they would have surely supplied copies thereof to the petitioner in compliance with the principles of natural justice and would have proceeded with the adjudication process. The very conduct of the respondents raises a strong suspicion in my mind that the respondents have no such material which would establish the charge levelled against the petitioner. This is one of the reasons why I am of the opinion that it will not be to the detriment of public interest or contrary to the interest of justice if the impugned show cause notice is quashed. Justice delayed is justice denied is not a clich . 34. For the reasons aforestated, the impugned show cause notice dated 14 January, 1991 is quashed along with the notices of hearing. The adjudication proceeding stands dropped against the petitioner. 35. W.P. 322 of 2015 is accordingly disposed of. There will be no order as to costs. 36. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. Later : 37. After judgment is delivered, prayer is made for stay of operation of the judgment an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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