H.S. Laskari vs State of Gujarat and Others

The present application is filed by the Superintendent of Customs, Junagadh, against the order dated 5-6-87 passed by the learned Chief Judicial Magistrate, Junagadh, which is annexed to the application as Annexure-C. In the said order a sum of Rs. 2,100/- wag ordered to be paid to Shri J. A. Dholakia and Shri L N. GaJra, Judicial Magistrate, First Class, Junaxadh each by way of remuneration f -or the work done by them under Sec. 110(1B) of the Customs Act, and the Customs and Central Excise Department, Junagadh was ordered to deposit a sum of Rs. 4,200/- in the court within 15 days from the date of the said order.

In view of the fact that the order was passed in favour of the learned Judicial Magistrates, First Class, Shri J. A. Dholakia and Shri J. N. Gajra, they were ordered to be joined as -party-respondents and accordingly they were joined as respondents Nos. 2 & 3. They have not filed any appearance and they have stated that they will submit to the orders of this Court. In the said order the learned Chief Judicial Magistrate has pointed out that the said Magistrates have worked in all f or six days totaling to 38 hours and 30 minutes; they have spent 12 hours for preparing the inventory report and list of sample and worked more than 50 hours and there are contraband articles worth Rs. l,70,00,000/-. It is also pointed out in. the said order that this work of making inventory does not fall within the scope of the duty of the judicial officers and that they have worked after office hours and as far as possible during holidays and therefore, remuneration should be paid to them. Therefore, in his opinion it would be proper to award Rs. 300/- per day to each Magistrate as each of them has worked for seven days.

Legality of the said order is challenged in this application by Mr. S. D. Shah, the learned Advocate appearing on behalf of the Customs Department. He submits that Section 110 of the Customs Act is amend in the year 1986 and new sub-sections (I A) and (1B) have been introduced and under the newly introduced sub-section (1) of Section 110(1B) the proper officer is required to prepare the inventory of the goods and is also required to make an application to the Magistrate '' for certifying the correctness of the inventory so prepared or taking, in the presence of the Magistrate, photographs of such goods and certifying such photographs as true or for allowing to draw representative sample of such goods in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. According to Mr. Shah, the newly introduced sub-sections (1A) and (1B) of Section 110 of the Act clearly imposes the duty on the Magistrate and that no provision is made for, giving additional remuneration to the Magistrate in the whole of the Customs Act and in that view of the matter the impugned order is patently contrary to law.

With a view to appreciate the contentions raised by Mr. Shah, it is necessary to re-produce the relevant portion of the newly added sub-sections (I A), (I B), (I C) of S. 110 of the Customs Act .

"(1A) The Central. Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under subsection (1), be disposed of by the proper officer in such manner as the Central Government may, from time to -time, determine after following the procedure hereinafter specified.

(B) Where any goods, being goods specified under sub-section (1 A), have been seized by a proper officer under subsection (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of-

(a) certifying the correctness of the inventory as prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.

(1C) Where an application is made ,under sub-section (I B), the Magistrate shall, as soon, as may be, allow the application.

(2) Where any goods are seized under subsection (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized

Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months.

(3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.''

(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts there from in the presence of an officer of customs."

From perusal of the sub-section (113) it is clear that the inventory of the goods is to be prepared showing all the details with regard to the description, quality, quantity, mark, numbers, country of origin, etc. and with A view to certify the correctness thereof an application is to be made to the Magistrate and when such application is made under sub-section (IC), the Magistrate has to grant the same application.

Sub-section (b) of sub-sec., (113) also provides that taking photographs of such goods is to be done in the presence of a Magistrate and they are to be certified as true. They have also to draw the representative samples of such goods in the presence of the Magistrate and the Magistrate has to certify the correctness of any such list of samples. The Central Legislature has, therefore, imposed a duty on the Officer to make -such an application at the time of preparing the inventory and it is also made a mandatory duty on the Magistrate to allow such application. What (when) that is so, it cannot be said that it is not the statutory duty of the Magistrate or it does not come within the scope of the duties'' s to be discharged by the learned Magistrates.

To charge remuneration for doing something which is required to be done under the statute, when it is done beyond the office hours or the court hours, is unheard of. Nowhere it is laid down that the Magistrates and Judges have to do home work for expeditious disposal of matters. Still they have to do that work and they do it. When they do so, they cannot claim any addition all remuneration. Judges and Magistrates are Judges and Magistrates for all the twenty four hours in a day. They are always on their duty even beyond the court hours. They cannot claim over time charges. Similarly the some other statute like the Food Adulteration Act also prescribes a duty on the Magistrates under sub-rule (3) of R. 4 of the Food Adulteration Rules to verify personally that the samples sent by the local authority are intact or not and when the Magistrate does that work, it cannot be said that he is not doing his statutory duty and, therefore, certainly he cannot claim additional remuneration. Similarly, Judges are at times appointed as One-Man Commission or otherwise under commissions of Inquiry Act, 1952, as a fact finding authority, and here also , they cannot claim additional remuneration. It is not befitting the post and status of a Judicial Officer to claim any such remuneration. It is not only improper but illegal to claim any such additional remuneration. If such remuneration is claimed and/or allowed, it is the first step or the beginning of deterioration of character of the Judicial Officers. The net effect would be that for getting additional remuneration all such judicial officers would thereafter crave for getting such work and/or they would'' do their work in such a way that they can claim over-time charges for doing work beyond court hours. Such practice of granting additional remuneration to the Judicial Officers is highly deprecated. It is illegal and improper. Under the circumstances, the order of paying remuneration for doing alleged extra work outside the court hours, granted by the Chief Judicial Officer under the impugned order is hereby set a side. Rule is accordingly made absolute.

Order accordingly.