TMI Blog2023 (10) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... and Natural Gas Corporation Limited [ 2014 (10) TMI 589 - SUPREME COURT] relied upon are concerned, they laid down the law in respect of what is trite by now that rule of Audi Alteram Partem is fundamental to the policy of Indian law and as such any order by any quasi-judicial authority or any administrative authority entailing drastic civil consequences cannot be sustained except after affording an opportunity to the person who would have to face such civil consequences. There is no doubt in the mind of this Court that there has been clear violation of principles of natural justice in the present case. Since the respondent therein had failed to comply with the mandatory requirement of Section 61(2) of FERA, the Trial Court in that case clearly had erred in taking cognizance and on that basis, quashed and set aside the impugned order on charge. This Court respectfully concurs with the observations and the ratio laid down in the case United India Airways Ltd. Anr. [ 2018 (4) TMI 421 - DELHI HIGH COURT] Proceedings being separate and not intertwined in respect of violation u/s 18(2) and (3) and Section 56 of the FERA - This Court is of the considered opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Limited Vs. Western Geco International (2014) 9 SCC 263 to buttress his aforesaid arguments. 3. In respect of the judgment in the case of State Bank of India (Supra), Mr. Dar learned senior counsel draws attention of this Court to para 33, 34 and 35 to submit that the Supreme Court has held that if there is power to decide and determine conferred upon an authority to the prejudice of a person, it is incumbent upon the said authority to act judicially which is implicit in the very nature of the proceedings itself. 4. In that, according to learned senior counsel, the petitioner before this Court was never afforded any opportunity to present his case before the Adjudicating Authority. To the same effect, learned senior counsel invites attention of this Court to the judgment of Supreme Court in ONGC (Supra), particularly to para 26, 28 and 29 of the judgment to submit that vide the aforesaid case, the Supreme Court had laid down that the principles of natural justice fall within the fundamental policy of the Indian law though the background of the case was in respect of a case under The Arbitration Conciliation Act, 1996. 5. According to learned senior counsel, the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28.02.2001 issued by the Central Bank of India to the petitioner at the very same address at Gurugram. 10. On the aforesaid issue, learned Senior Counsel submits that having regard to the fact that the Central Bank of India had clear knowledge of the shifting of the petitioner to the address at Gurugram, the subsequent proceedings before the learned ACMM on the basis that they have been served at the previous address would render the proceedings itself void. 11. According to learned Senior Counsel, the result would be quashing of the entire proceedings. 12. That coupled with the judgment of the Supreme Court laid on the law aforesaid, learned Senior Counsel submits that the present petition should be allowed and the exparte proceedings which were initiated by the Enforcement Directorate dated 04.04.2022 including the subsequent complaint be quashed and set aside. 13. Per contra, Mr. Yogeshwaran, learned senior standing counsel for the respondent submits that the proceedings under Section 56 of FERA and Section 18(2) and (3) are distinct proceedings and as such even if it is taken that the Adjudicating Authority has heard the petitioner or not, the proceedings under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) which are as under:- Brief background as per the complaint u/s 56 FERA Act filed by ED before trial court on 04.04.2002 are that an information is received by the ED from RBI that accused firm had exported the goods and failed to realize the certain export bills pursuant to which inquiries were made from his bankers i.e. Central Bank of India. Central Bank of India vide various letters reported to the ED that 35 GRs pertaining to year 1992-93 valued US Dollar 1049426 are export outstanding which the accused had not realized till such time. Thereafter the accused was called upon to explain whether any such permission was granted to accused from RBI for realization for export proceeds, and he was served with memorandum and also with opportunity notice dated 25.01.2001 thereby accused was asked to place on record such permission for extension of realization however accused failed to furnish any such permission hence the complaint is filed. The issue revolves primarily around the dispute as to whether the notices under proviso to Clause (ii) of sub section (2) of Section 61 FERA affording an opportunity to show cause was served upon the petitioner or not. It is not dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n service report, the ED also not tried to obtain the fresh address from Central Bank of India or RBI. Ld. SPP for ED submits that fresh address should be submitted to the ED however it is clear from the record that accused were not aware of the proceedings before ED, therefore there appears no occasion for accused to furnish the fresh address to ED. The accused came into the knowledge about present proceedings on receiving demand notice at Gurugram in 2020, thereafter filed the present application for anticipatory bail. The PO proceedings by the trial court was conducted on the addresses, on which the accused was not found during investigation by ED. It is also pertinent to notice that accused do not appear to have changed the address because of the proceedings with the bank as the accused has already communicated his fresh address to the bank vide letter dated 01.09.2000 well prior to the proceedings before ED. 21. It is clear from the aforesaid that the ED did not have the fresh and correct address of the petitioner which was not disclosed by the Central Bank of India despite being fully aware of the same. Having regard to the aforesaid undisputed admission being part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs relied upon by Mr. Yogeshwaran learned senior standing counsel for ED and is unable to appreciate the reliance placed thereon qua the facts of the present case. 26. So far as the judgments of Supreme Court in the State Bank of India (Supra) and Oil and Natural Gas Corporation Limited (Supra) relied upon by Mr. Dar, learned Senior Counsel are concerned, they laid down the law in respect of what is trite by now that rule of Audi Alteram Partem is fundamental to the policy of Indian law and as such any order by any quasi-judicial authority or any administrative authority entailing drastic civil consequences cannot be sustained except after affording an opportunity to the person who would have to face such civil consequences. There is no doubt in the mind of this Court that there has been clear violation of principles of natural justice in the present case. 27. A similar issue has been subject matter of a case decided by the learned Single Judge of this Court on 05.04.2018 in Crl. Rev. P. 642/2017 titled United India Airways Ltd. Anr. Vs. Chief Enforcement Officer, Enforcement Directorate reported in (2018) SCC OnLine Del 8233. 28. It would be apposite to extract the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A were being undertaken and reliance on the same in the impugned order as sufficient compliance of Section 61(2) of FERA, is clearly misplaced. 17. Since respondents have failed to comply with the mandatory requirement of Section 61(2) of FERA, the Trial Court clearly erred in taking cognizance. 18. In view of the above, the impugned order on charge dated 11.07.2017 cannot be sustained and is liable to be set aside. The impugned order dated 11.07.2017 is, accordingly, quashed. The present petition is allowed. There shall be no order as to cost. 29. At the end, learned Single Judge had concluded that since the respondent therein had failed to comply with the mandatory requirement of Section 61(2) of FERA, the Trial Court in that case clearly had erred in taking cognizance and on that basis, quashed and set aside the impugned order on charge. 30. This Court respectfully concurs with the observations and the ratio laid down in the case United India Airways Ltd. Anr. (Supra). 31. Another argument of Mr. Yogeshwaran in respect of proceedings being separate and not intertwined in respect of violation under Section 18(2) and (3) and Section 56 of the FERA is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
