1980 (8) TMI 203 - HC - Indian Laws

Appeal by Director of Enforcement Dismissed as Not Maintainable under Foreign Exchange Regulation Act

The appeal filed by the Director of Enforcement against the order of the Foreign Exchange Regulation Appellate Board was dismissed as not maintainable. ... Maintainability of appeal - aggrieved person - Explanation to Section 54 treating only the Central Government as aggrieved - quasi-judicial authority - statutory authorisation to appeal - substitution of appellant by amendment - delegation of powers and identity of adjudicating authorityMaintainability of appeal - aggrieved person - Explanation to Section 54 treating only the Central Government as aggrieved - quasi-judicial authority - statutory authorisation to appeal - delegation of powers and identity of adjudicating authority - The appeal filed by the Director of Enforcement is not maintainable as he is not an aggrieved person entitled to appeal under the Explanation to Section 54. - HELD THAT: - The Court held that the Explanation to Section 54 confines the right of appeal to the Central Government; a subordinate authority such as the Director of Enforcement cannot, merely because his adjudicatory order has been reversed, be treated as an aggrieved person entitled to prosecute an appeal. The Director acted as a quasi-judicial authority when passing the original adjudication and a statutory provision conferring express power is necessary to permit such an initial authority to appeal against the reversal of its own order. Allowing a subordinate adjudicator to claim grievance whenever an appellate body reverses its decision would contradict principles of neutrality and invite the inference of interest or bias. The court rejected the contention that delegation to the Deputy Director of Enforcement meant the Director could be treated as the aggrieved authority, noting absence of material showing that the Central Government had decided to appeal or had authorised substitution; consequently the Director cannot be equated with the Government of India for the purpose of maintaining the appeal. [Paras 4, 5, 6]Appeal by the Director of Enforcement dismissed as not maintainable; Director is not an aggrieved person entitled to appeal under the Explanation to Section 54.Substitution of appellant by amendment - maintainability of appeal - The petition to amend the cause title to substitute the Government of India as appellant was dismissed. - HELD THAT: - The Court found that the amendment petition filed by the Director of Enforcement amounted to substituting a new appellant in place of the original appellant. The affidavit averment that the appeal was in fact filed on behalf of the Government of India did not suffice because the memorandum of grounds of appeal itself named the Director of Enforcement; no petition had been filed by the Government of India requesting substitution or showing that the appeal was filed by mistake. In the absence of any material demonstrating that the Government of India had instructed or authorised the appeal, the proposed amendment to show the Government of India as appellant could not be allowed. [Paras 3]Petition to amend the cause title to substitute the Government of India dismissed; amendment refused.Final Conclusion: The appeal was dismissed as not maintainable because the Director of Enforcement is not an aggrieved person entitled to appeal under the Explanation to Section 54; the application to substitute the Government of India as appellant was refused. The dismissal is without prejudice to the Government of India's right to file an appeal if so advised. Issues involved: Appeal filed by Director of Enforcement against order of Foreign Exchange Regulation Appellate Board, maintainability of appeal by Director of Enforcement.Issue 1: Appeal filed by Director of EnforcementThe appeal was filed by the Director of Enforcement against the order of the Foreign Exchange Regulation Appellate Board, which set aside the order of adjudication holding the respondents guilty of contravention of Section 4(1) of the Foreign Exchange Regulation Act, 1947, and imposing a personal penalty. The respondents raised a preliminary objection regarding the maintainability of the appeal by the Director of Enforcement, contending that only the Central Government can be considered aggrieved under the Act for filing an appeal to the High Court. The Director of Enforcement sought to amend the cause title in the memorandum of appeal to substitute the name of the appellant as the Government of India, but this was dismissed as the Director of Enforcement cannot be equated with the Government of India.Issue 2: Maintainability of appeal by Director of EnforcementThe Explanation to Section 54 of the Foreign Exchange Regulation Act 1973 specifies that only the Central Government can be an aggrieved party for filing an appeal against the order of the Appellate Board. The Director of Enforcement, as the initial authority passing the adjudication order, cannot be considered aggrieved simply because the Appellate Board set aside the order. It was emphasized that a quasi-judicial Tribunal like the Director of Enforcement cannot have a grievance when a higher appellate forum reverses its decision, as it would imply bias. Without statutory authorization for the Director of Enforcement to file an appeal, the appeal was deemed not maintainable. The court dismissed the appeal, stating that it was without prejudice to the right of the Government of India to file an appeal if advised to do so.In conclusion, the appeal filed by the Director of Enforcement was dismissed as not maintainable due to lack of statutory authorization and the specific provision in the Foreign Exchange Regulation Act regarding aggrieved parties for filing appeals.