2014 (12) TMI 357

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....egulation and an enquiry office was appointed who conduct the enquiry and in his report he found the petitioner not guilty of violating of any of the conditions enshrined under Regulation 13 of the said Act. In terms of Regulation 22(5) of the said regulation enquiry report was submitted to the Commissioner of Customs who is a disciplinary authority. It is not in dispute that before proceeding with the disciplinary proceedings the report of the enquiry officer was submitted and/or furnished to the petitioner. By the impugned order the disciplinary authority did not agree with the findings of the enquiry officer and proceeded to impose the penalty in the form of revocation of licence. 3. It is not in dispute that the disciplinary authority did not communicate to the petitioner the reasons for disagreement with the enquiry report as such disagreement sees the light of the day in the impugned order. According to the petitioner the disciplinary authority should not have acted by giving surprise to the petitioner for disagreement without letting him know the points of the disagreement so that the petitioner would be in a position to controvert the points of disagreement and is f....

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....clusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In the departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. 18. Under Regulation 6 the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representin....

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....e with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority, of its own, provide such an opportunity. Where the rules are in this regard s....

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....ilent about the procedure to be adopted by the disciplinary authority when proposes to differ with the finding of the enquiry officer, a further opportunity of hearing and communication of the point of difference is in-built mechanism within the principles of natural justice and any violation or infraction and/or non-adherence thereof would entail the action of the disciplinary authority unsustainable. Admittedly, Regulation 22 of the Regulations, 2004 is silent about such procedure but does not vest the power upon the disciplinary authority in proceeding as per his own whims without following the procedures as laid down in the above noted reports by the Supreme Court. The disciplinary authority proposes to differ from the finding of the enquiry officer on the material and evidences adduced before the enquiry officer, in such contingency it is inevitable that the petitioner would not be informed of the point of differences before being found guilty by the disciplinary authority. Affording an opportunity of hearing is not an idle formality or an expression to be used to cover up the lacuna, but a meaningful and/or actual opportunity of hearing should have been provided which necessa....

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....ith another aspect of the point, that learned Judge said : "If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failur....