TMI Blog2009 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal (hereinafter referred to as the "CESTAT") to appear, act and/or plead on their demitting office before the very same Tribunal. The legislature has sought to debar all such like persons, by insertion of sub-section (6) to Section 129 of the Customs Act, 1962 (hereinafter referred to as the "Custom Act"). The said provision was introduced by Section 110 of the Finance Act, 2007 w.e.f. 11.05.2007. 1.1 The petitioners being aggrieved, have laid a challenge to the said provision, broadly on two grounds. The first being, that Section 129(6) of the Customs Act is ultravires Articles 14, 19(1)(g) and 21 of the Constitution of India. The second, that, in any event, Section 129(6) of the Act has no applicability to the petitioners in view of the fact that at the time when they were appointed to CESTAT and also at a point in time when they demitted the office, the said provision was not on the statute book. In sum and substance, the petitioners contend that both on a plain reading of the provision, as also otherwise, it cannot apply to the petitioners as they cannot be bound by a conditionality of which they had no notice. 1.2 The petitioners have towards this end made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of, facts pertaining to the petitioner in writ petition 6792/2007 to which we will advert as we go along with the narration of facts, we have decided to pen a common judgment in respect of the captioned writ petitions. With this, the facts relevant to each of the petitioners are noted hereinafter. 2.2 In so far as the petitioner, Sh. K.L. Rekhi in writ petition 6792/2007 is concerned, he joined Indian Customs and Central Excise Service, Class-I (later called Group "A") (in short the "service") on 10.01.1957. On 29.09.1982 he assumed the charge as Member (Technical) Customs Excise and Gold (Control) Appellate Tribunal (in short "CEGAT") (as it was then known). On 01.02.1989, he was promoted in his parent cadre as Chairman, Central Board of Excise and Customs (in short "CBEC"), which is when, he relinquished charge as Member, CEGAT. On 31.01.1991 Sh. K.L. Rekhi superannuated as the Chairman of CBEC. 2.3 Sh. P.C. Jain, petitioner in writ petition 6710/2007, joined service in July, 1963. On 01.05.1986 he assumed charge as Member (Technical) in CEGAT. On 28.09.1999, when the petitioner demitted office, he was the vice-chairman of CEGAT. In the interregnum, the petitioner had als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (ii) In computing the period during which a person has been an advocate, there shall be included any period during which the person has held a judicial office, or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate. (2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years. (3) The Central Government shall appoint - (a) a person who is or has been a judge of a High Court; or (b) one of the members of the Appellate Tribunal, to be the President thereof, (4) The Central Government may appoint one or more members of the Appellate Tribunal to be the Vice-President, or, as the case may be, Vice-Presidents, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal and Appellate Tribunal for Foreign Exchange are not disabled from appearance or from acting or pleading for their clients before their respective Tribunals, even though the provisions relating to their recruitment, method of appointment, selection procedure are almost similar. The petitioners contend that this is discriminatory and hence violative of Article 14. 7. The violation of Article 19(1) of the Constitution is alleged on the ground that even though 3 out of 4 petitioners are enrolled with the Bar Council Of Delhi, they are prevented from practising their profession by virtue of the impugned provision, which is directly in conflict with their rights to practice as an advocate; before any court including the Supreme Court or any Tribunal or any person legally authorised to take evidence - as encapsulated in Section 30 of the Advocates Act, 1961 and Section 14 of the Indian Bar Councils Act, 1926. Here it is relevant to point out that the petitioners have submitted that even if it is conceded that Section 30 of the Advocates Act has not been brought into force and is thus not available to the petitioners, the provisions of Section 14 of the Indian Bar Councils A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in which the Central Government would go about constituting the CESTAT, and the qualifications which would be required for being appointed as the judicial/ technical members, vice-president and the president of the CESTAT. Therefore, the impugned provision, that is, sub-section (6) to Section 129, which was, brought on to the statute book by virtue of the Finance Act, 2007 w.e.f. 11.05.2007 could not by incorporation or otherwise transpose the bar of the impugned provision into the definition of "Appellate Tribunal" as set out in Section 2(aa) of the Excise Act and Section 65(5) of the Finance Act, 1994 which were inserted in the respective statute much prior in point of time. In other words, the arguments made is as follows: (i) The definition of Appellate Tribunal which is contained in section 2(aa) of the Excise Act was inserted in the Excise Act by Act 44 of 1980 Section 50 and Schedule V w.e.f 11.10.1982. The said definition was amended to attain its present form by substitution of the expression "service tax" in place of "Gold (Control)" by Act 32 of 2003 by Section 135 w.e.f. 14.05.2003. Similarly, the definition of Appellate Tribunal as contained in Section 65(5) was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue Appellate Tribunal Act of 1986 (in short the „CERAT Act‟) for the purposes of setting up a Tribunal in consonance with the power contained in Article 323B of the Constitution of India. The CERAT Act not only contained a provision whereby jurisdiction of all courts (including the High Court) save and except the Supreme Court was excluded, but also Section 11(c) which barred the president or a member from appearing, acting or pleading before the Appellate Tribunal or the CEGAT. The Supreme Court in the case of L. Chandrakumar vs UOI: (1997) 3 SCC 261 declared as an unconstitutional Clause 2(d) of Article 323A and Clause 3(d) of Article 323B of the Constitution which, inter alia, vested power in the Central and the State Governments to constitute Tribunals over which the Supreme Court's jurisdiction under Article 32 and that of the High Court jurisdiction under Articles 226 and 227 of the Constitution stood excluded. This led to the recommendation for repeal of CERAT Act, which was eventually brought about in 2004. 13. The learned ASG took us through the file notings of the Government of India which established that the issue of appearance by president/vice-presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive in view of the fact that the petitioners on account of their expertise were free to appear before superior forums all over the country, that is, the High Court to which an appeal under the respective statutes lies against the orders of the CESTAT, as also, the Supreme Court. 18. It was also submitted on behalf of the respondents that the contention of the petitioners that the provision could not be made applicable to them in view of the fact that it was not on the statute book at the time of their appointment and at the time when they demitted office, was untenable for the reason that the bar applied to the right to practice. It was contended that the right to practice was not a condition of service, and assuming without admitting that it was, it is well-settled that a condition of service in respect of a government servant can be changed unilaterally, as after entering service the legal relationship of a Government Servant is in the nature of a "status", the terms of which are fixed by law and not governed by the ordinary law of contract of service subsisting between a master and servant. Reliance in this regard was placed on the judgment of the Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision was not in place. The petitioners are aggrieved and perhaps justifiably as they have been in practice, since demitting office, for periods ranging from two(2) years in the case of Sh. V.K. Aggarwal to sixteen(16) years, in the case Sh. K.L. Rekhi before the date on which the impugned provision was brought on to the statute book i.e. 11.05.2007. But the validity of a statute cannot be judged only on the basis rights of an individual when an individual's right are pitted against a greater public weal. Individual rights have to give way to a greater public interest. And who best knows the public interest but the legislature unless shown otherwise-while always bearing in mind that the courts as the sentinels of the Constitution are fully empowered to defend and protect an individual's fundamental rights, if an act of the Parliament trenches upon inalienable right of an individual which are in conflict with interest of the majority. The burden is heavy. There is a presumption of constitutionality in respect of an Acts of a legislature. 21. With the aforesaid preface, let us examine the nuts and bolts of the challenge of the petitioners to the impugned provision. The cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m non-financial factors where it is necessary to satisfy a test which has been variously described as involving "a real likelihood of bias" or "a reasonable suspicion of bias." The explanation of this approach is two-fold. First, the efficacy of the rule against bias would be greatly reduced if the complainant had to prove actual bias. Secondly, the law is concerned with public confidence in the administration of justice and the need to ensure that individuals feel that they have been given a fair hearing" (emphasis is ours) 23. In our view, therefore, for the petitioners to contend that there should have been some kind of empirical data to suggest that there had been instances of misdemeanour which would have propelled the respondents to insert such a provision in the enactment is based on a misappreciation of a fundamental premises that a court's authority is based on the public perception especially that of the litigants appearing before it, that the process of administration of justice is far removed, from even the remotest possibility of bias creeping into the decision making process. Therefore, to contend otherwise is to ignore the very edifice on which the administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights conferred by the Parliament by enactment of the said statutes in exercise of its powers conferred under entries 77 and 78 of List-I, which could not have been taken away by a Law enacted by the State. Justice Chinappa Reddy in H.S. Raghavachar (supra) while sitting in the Division Bench in the Supreme Court, once again speaking for the court applied the ratio of the judgment in the case of Jaswant Kaur (supra) and struck down a similar provision, that is, Section 48(8) of the Karnataka Land Reforms Act, 1961 which barred legal practitioners from appearing before the Land Tribunals, functioning under the Karnataka Land Reforms Act, 961. 26. In our view, the two cases cited by the petitioners are clearly distinguishable. In both the cases the court struck down the bar placed on the legal practitioners to practice before the Tribunal constituted under the concerned statutes on the ground that the prohibition was enacted by the State which trenched upon the right to practice conferred by a law enacted by the Parliament and hence the State law was bad in so far as it trenched upon the law enacted by the Parliament. In the instant case the impugned provision is incorporated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the case of Devatta Prasad (supra) have held that the High Courts are empowered to regulate the right to practice. We may with profit extract the observations, of a three Judge Bench of the Supreme Court in the case Lingappa Pochanna vs State of Maharastra : AIR 1985 SC 389 at pages 403 to 404 (Paragraphs 32 to 35). The Supreme Court in the said case, amongst others, answered the issue as to whether 9A of the Maharastra Restoration of Lands to Schedule Tribes Act, 1974, which barred advocates from appearing for any party in any proceeding under the said Act before the Commissioner, Collector or the Maharastra Revenue Tribunal. "32. The next and the last question that arises is whether Section 9A of the Act is constitutionally void as it affects (i) the fundamental right of an advocate enrolled by the State Bar Council of Maharashtra to carry on his profession guaranteed by Article 19(1)(g) of the Constitution and (ii) the right of the appellants who are non-tribals being prevented to be represented by a legal practitioner of their choice. 33. The problem before us has to be viewed from two angles: first, from the view point of the legal practitioner, and secondly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce entitled to practise. In view of the various authorities on the subject, we cannot but hold that Section 9A of the Act is not an unconstitutional restriction on advocates to practise their profession. 35. That brings us to the second aspect of the matter i.e. the so-called right of a litigant to be represented before the Collector in matters not covered by Sections 3(1) and 4 of the Act. Now it is well-settled that apart from the provisions' of Article 22(1) of the Constitution, no litigant has a fundamental right to be represented by a lawyer in any Court. The only fundamental right recognized by the Constitution is that under Article 22(1) by which an accused who is arrested and detained in custody is entitled to consult and be defended by a legal practitioner of his choice. In all other matters i.e. in suits or other proceedings in which the accused is not arrested and detained on a criminal charge, the litigant has no fundamental right to be represented by a legal practitioner. For aught we know, the legislature felt that for the implementation of the legislation, it would not subserve the public interest if lawyers were allowed to appear, plead or act on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94, as on the date of the amendment brought about by Finance Act, 2007, the said provisions, that is, Section 2(aa) of the Excise Act and Section 65(5) of the Finance Act 1994 were already on the statute book. In our view this argument, in the first instance seems to be attractive, but on a closer scrutiny, does not lend credence to case of the petitioners. There is no denial of the fact that there is a single tribunal, that is, CESTAT which adjudicates upon matters which pertain to customs, excise and service tax. There is also no dispute that the members, vice-president and president are the same persons who hear and adjudicate upon the matter involving the aforementioned three streams of law. That being the position, the prohibition contained in the impugned provision gets attracted no sooner the person who has held the office of the president/ vice-president or a member of the Appellate Tribunal which is a common tribunal, that is, the CESTAT seeks to appear, act or plead before the CESTAT. It makes no difference that corresponding amendments have not been brought about in the Excise Act or the Finance Act, 1994, because the prohibition is not attached to the stream of law whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s best equipped to take a decision in this regard. Having taken a decision, which, according to us, is neither unreasonably restrictive nor violative of any of the fundamental rights of the petitioners as guaranteed by the Constitution, there is no reason for us to either strike down the impugned provision as being ultravires the Constitution or to read it in a fashion that makes it prospective in its application. To our minds there is no reason to draw a distinction between persons who have demitted office prior to the insertion of the impugned provision, that is, 11.05.2007 and those who would demit office thereafter. If the rationale for inserting the provision is that it would enhance public interest by strengthening the administration of justice, we would not impede the said pursuit of the legislature based on tenuous submission of the petitioners. 33. This leaves us with one petitioner, that is, Mr. K.L. Rekhi who, as indicated in the beginning, has not obtained a degree in law but was practicing before the CESTAT in his capacity as an authorised representative. As a matter of fact, the other petitioners have also made an incidental submission that no corresponding amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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