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Judgment
Bela Trivedi, J.—The Petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India challenging the
judgments and orders passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (hereinafter referred to as '' the CEGAT'')
in Appeal bearing No. C/195/01-Mum, whereby the CEGAT had dismissed the Appeal of the Petitioner and confirmed the order passed by the
Commissioner of Customs, the Respondent No. 2 herein, revoking the licence of the Petitioner as the Custom House Agent (CHA).
Heard learned advocate Mr. D.C. Dave for the Petitioner and learned Assistant Solicitor General of India Mr. P.S. Champaneri for the
Respondents.
The short facts giving rise to the present petition are that the Petitioner is a company incorporated under the Companies Act, engaged in the
business as CHA since 1949, having its offices at New Delhi, Calcutta, Paradip and Haldia. As per the case of the Petitioner, in the month of
December - 1997 or thereabout, one R.P. Bansal & Company of Agra (hereinafter referred to as ''the Importer'') approached the Petitioner
through one Sunil Kothari of M/s. Prabhat Kiran Mariners, a proprietorship concern, of one Mr. Parag P. Mehta, and requested the Petitioner to
act as Custom House Agent for handling the clearance of one consignment of 105 MT of gypsum (hereinafter referred to as ''the said goods'') at
Kandla Port. Accordingly, the Petitioner agreed to act as CHA for the Importer and precipitated the course of action for filing the requisite bill of
entry on 8th December 1997, bearing the number 10377. It is further the case of the Petitioner that after complying the necessary formalities for
the clearance of the said goods, the Petitioner informed the said M/s. Prabhat Kiran Mariners for taking requisite steps for taking the delivery of
the said goods from the authorities of Kandla Port, inasmuch as the said M/s. Prabhat Kiran Mariners were to act as the forwarding and
transporting agents for and on behalf of the Importer. Accordingly, the requisite gate pass was prepared on 22nd December 1997 for the purpose
of securing removal of the said goods from the North Gate of Kandla Port by the said forwarding and transporting agent of the Importer. At the
relevant time, the Custom Authorities did not permit the removal of the said goods from the North Gate and the said Mr. Sunil Kothari was
required to precipitate the course of action for seeking permission of Custom Authorities for removal of the said goods from the West Gate in
place of the North Gate of Kandla Port. Accordingly, the said goods were removed from the West Gate of Kandla Port on 23rd December 1997.
It is further case of the Petitioner that thereafter on the basis of the interim report received by the Custom Authorities suggesting that the said
goods were ""gypseous alabaster"" in place of ""gypsum"", an inquiry was undertaken by the Custom Authorities at Kandla Port, wherein the
statement of the Subhash Shethi, Executive Director of the Petitioner, Mr. Sunil Kothari of M/s. Prabhat Kiran Mariners, etc. came to be recorded
u/s 108 of the Customs Act, 1962 (hereinafter referred to as ''the said Act''). The premise of the said inquiry was to the effect that ""gypseous
alabaster"" was prohibited for import and therefore the said goods had become liable for confiscation. On the basis of the said inquiry, the
Respondent No. 2 herein passed an order dated 26th February 1998 under the provisions contained in Regulation 21(2) of the Customs House
Agents Licensing Regulations, 1984 (hereinafter referred to as the ''said Regulations''), suspending the licence of the Petitioner as CHA pending the
detailed inquiry in to the matter. Thereafter, the Petitioner made a representation to the Respondent No. 2 seeking revocation of the said order of
suspension of the licence, however, the Respondent No. 2 did not accept the said representation of the Petitioner and continued the suspension of
the licence of the Petitioner as CHA. It appears that thereafter one show-cause notice came to be served upon the Petitioner u/s 124 of the said
Act calling upon the Petitioner to show cause as to why the penalty should not be levied upon the Petitioner, however, subsequently the said show
cause notice came to be dropped, on 28.06.1999.
It further transpires that in the meantime, another show cause notice dated 11th September, 1998 under the signature of the Commissioner of
Customs, Kandla - Respondent No. 2 herein, came to be served on the Petitioner under Regulation 23 of the said Regulations calling upon the
Petitioner to submit its written statement of defence to the imputations of the misconduct and misbehaviour as contained in the Articles of Charges.
The Petitioner submitted its reply dated 26th October, 1998 explaining the reasons and praying for not taking any action on the ground that the
charges were not sustainable. However, the Inquiry Officer, submitted his report dated 26th June 1999, on the conclusion of inquiry to the
Commissioner of Customs, Kandla for taking further action. The Respondent No. 2 - Commissioner of Customs, Kandla, based upon the said
report of Inquiry Officer, held the charges as proved against the Petitioner and ordered for the revocation of licence of the Petitioner as CHA
under Regulation 21 of the said Regulations, vide order dated 9th June, 2000. Being dissatisfied with the said order, the Petitioner preferred an
appeal before the CEGAT, Mumbai for quashing and setting aside the said order dated 9th June 2000 passed by the Commissioner of Customs,
Kandla. On the preliminary contention that no opportunity to cross-examine the concerned witnesses was made available to the Petitioner, the
CEGAT allowed the said Appeal, however, directed the Commissioner of Customs to commence the inquiry de novo against the Petitioner on the
same charges by following the provisions contained in the said Regulations stricto senso. Subsequent to the said order of CEGAT, a fresh inquiry
came to be initiated against the Petitioner de novo by the Commissioner of Customs by appointing an Inquiry Officer. The said Inquiry Officer, on
the conclusion of the inquiry, submitted his report dated 6th December 2000, to the Commissioner of Customs, finding the charges levelled against
the Petitioner as duly proved. The Petitioner, upon the receipt of the said report, submitted its reply dated 21st December, 2000 to the Deputy
Commissioner of Customs, Kandla. However, the Respondent No. 2 - Commissioner of Customs passed the order dated 16th January 2001,
accepting the report of Inquiry Officer and ordering revocation of CHA licence issued to the Petitioner company and further ordering forfeiture of
security in view of the provisions contained in Regulation 21(b)(c) of the said Regulations. Being aggrieved by the said order passed by the
Respondent No. 2, the Petitioner invoked the appellate jurisdiction of the CEGAT by preferring the Appeal being No. C/195/01-Mumbai.
It appears that after hearing the Petitioner the learned Members of the CEGAT passed the judgment and order dated 12th June, 2002 recording
the findings of facts against the Petitioner, however differed in their final conclusion on the issue of awarding punishment to the Petitioner under
Regulation 21 of the said Regulations, inasmuch as the Member (Technical) held that the period of suspension of licence undergone by the
Petitioner was sufficient punishment, and ordered to restore the licence of the Petitioner, whereas the Member (Judicial), considering the
seriousness of the case confirmed the order of the Commissioner for revocation of licence of the Petitioner. In view of the said difference of
opinions between the two Members, the matter was placed before the third Member for his opinion as to whether the licence of the Petitioner
should be restored or should be permanently revoked. The third Member being Member (Judicial) vide order dated 12th August 2002 concurred
with the order proposed by Member (Judicial). Accordingly, the final order dated 18th September 2002 came to be passed by the CEGAT
dismissing the appeal of the Petitioner. Being aggrieved by the said judgments and orders passed by the CEGAT, the Petitioner preferred the
present petition under Articles 226 and 227 of the Constitution of India.
It was sought to be submitted by learned Advocate Mr. D.C. Dave for the Petitioner that Regulation 13 of the said Regulations prohibited sale
or transfer of the licence and the action of sub-letting the licence as alleged against the Petitioner could not be said to be either sale or transfer of
licence in favour of M/s. Prabhat Kiran Mariners. According to Mr. Dave, the expression ""otherwise transfer"" would attract its interpretation from
the word ''sold'' or ''transferred'' and could not take within its sweep the alleged act of sub-letting. Mr. Dave also submitted that the statement of
the Executive Director of the Petitioner company was recorded u/s 108 of the said Act in another inquiry and could not be relied upon in the
inquiry initiated against the Petitioner for the alleged breach of the Regulations. Mr. Dave, however, in the alternative submitted that even if the
charges levelled against the Petitioner are held to be proved, the quantum of punishment of revocation of licence was disproportionate to the
alleged mis-conduct of the Petitioner, inasmuch as the extreme and harsh punishment of revocation of licence should not have been resorted to only
on the sole incident of committing breach of Regulations, and more particularly, when there was no revenue loss to the department. Mr. Dave,
invoking the doctrine of proportionality, relied upon various judgments of Hon''ble Supreme Court, more particularly, in the case of Chairman cum
Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, in the case of State of M.P. and Others Vs.
Hazarilal, and in the case of Kailash Nath Gupta Vs. Enquiry Officer, (R.K. Rai), Allahabad Bank and Others, and submitted that the punishment
of revocation of licence was not only unduly harsh but grossly irrational and pervese.
However, the learned Assistant Solicitor General of India Mr. P.S. Champaneri, taking us to the impugned orders passed by the Commissioner
of Customs as well as the CEGAT as also the affidavit-in-reply filed by the Respondents, submitted that there was gross misuse of licence by the
Petitioner as CHA which had resulted into violation of the said Regulations and considering the gravity of the mis-conduct on the part of the
Petitioner, the concerned Respondents had awarded appropriate punishment, which does not call for any interference by this Court. Shri
Champaneri, relying upon the judgments of the Hon''ble Supreme Court in the case of Chairman, All India Railway Rec. Board and Another Vs.
K. Shyam Kumar and Others, and in the case of Union of India and another Vs. G. Ganayutham (Dead) by LRs., submitted that the scope of
judicial review is very limited as regards the quantum of punishment imposed on the delinquent by the appropriate Authorities and there being no
error in appreciating the evidence or in the conclusion arrived at by the Tribunal, the Court should not interfere with the said orders which even
otherwise are legal and valid.
Having regard to the rival contentions raised by the learned Counsels for the parties and to the orders passed by Respondent Authorities, it
clearly transpires that both the Authorities i.e. the Commissioner of Customs and the CEGAT, after thoroughly discussing the evidence as regards
the charges of mis-conduct levelled against the Petitioner, had come to the conclusion that all the said charges were duly proved. It is pertinent to
note that though the two Members of CEGAT had differed on the issue of imposition of punishment i.e. revocation of licence, both had concurred
with the findings on the establishment of charges against the Petitioner inter alia that the Petitioner had transferred its licence by sub-letting the same
to M/s. Prabhat Kiran Mariners in violation of Regulation 13 of the said Regulations and that the Petitioner did not maintain the statutory records
and thereby contravened Regulation 19 of the said Regulations and that the Petitioner obtained custom pass for the persons who were not its
employees and permitted the employees of M/s. Prabhat Kiran Mariners to use the same before the Custom Authorities for its monitory gain, in
violation of Regulation 14 (b) and 20(6) of the said Regulations. The charges against the Petitioner that the said imported goods of the Importer
were removed through the West Gate instead of North Gate of the Kandla Port in contravention of Regulation 14(a), without obtaining
authorization from the Importer in respect of the consignment, were also held as proved. These findings of the Respondent Authorities on the
charges levelled against the Petitioner, are arrived at by the Respondents after considering all materials on record. The learned Advocate Mr. Dave
for the Petitioner has failed to point out any error in the said findings. Even otherwise, the said findings being findings of facts, this Court exercising
writ jurisdiction is not inclined to re-evaluate the evidence or sit in appeal over the said findings.
So far as the ""Doctrine of Proportionality"" as sought to be canvassed by learned advocate Mr. D.C. Dave for the Petitioner is concerned, it
cannot be gainsaid that ordinarily the High Court would not interfere with the well reasoned order of punishment, on the ground of sympathy or
sentiments. It may be stated that the principles of judicial review of administrative action and of proportionality of punishment have been considered
by the Hon''ble Supreme Court in catena of decisions. The Hon''ble Supreme Court, in the case of Union of India and another Vs. G. Ganayutham
(Dead) by LRs., considering the position of proportionality in administrative law in England and India, observed thus:
The current position of proportionality in administrative law in England and India can be summarised as follows;-
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision
was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the
framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant
matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or
perverse. The Court would not however go in to the correctness of the choice made by the administrator amongst the various alternatives open to
him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The Court would not interfere with the administrator''s decision unless it was illegal or suffered from procedural impropriety or was irrational in
the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into
English Administrative Law in future is not ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a
secondary judgment to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he had
done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary
judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will
only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The
secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to
find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of
''proportionality'' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental
freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Article 19, 21 etc. are involve
and not for Article 14. Punishment in disciplinary matters: Wednesbury & CCSU tests:
Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the
question of ''proportionality''. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to
''irrationality'', there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have
arrived at nor is there a finding, based on material, that the punishment is in ''outrageous'' defiance of logic. Neither Wednesbury nor CCSU tests
are satisfied. We have still to explain ''Ranjit Thakur''.
In Ranjit Thakur, this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance
of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU
tests were satisfied. In another case, in B.C. Chaturvedi Vs. Union of India and others, a three Judge Bench said the same thing as follows (SCC
P.762 para 18)
The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusions on penalty and impose some
other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal it
would appropriately would the relief, either by directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof
Similar view was taken in Indian Oil Corporation Ltd. and another Vs. Ashok Kumar Arora, that the Court will not intervene unless the
punishment is wholly disproportionate.
Again, while considering the ""Doctrine of Proportionality"", the Hon''ble Supreme Court, in the case of Management of Coimbatore District
Central Co-operative Bank Vs. Secretary, Coimbatore District Central Co-operative Bank Employees Association and Another, has held as
under:
''Proportionality'' is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his
priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to
the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of
permissible priorities.
de Smith states that ''proportionality'' involves ''balancing test'' and ''necessity test''. Whereas the former (''balancing test'') permits scrutiny of
excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (''necessity test'')
requires infringement of human rights to the least restrictive alternative. [''Judicial Review of Administrative Action''; (1995); pp. 601-605; para
13.085; see also Wade & Forsyth; ''Administrative Law''; (2005); p.366].
In the case of Chairman & M.D. V.S.P. and Ors. v. Goparaju Sri Prabhakara Hari Babu 2008 (2) G.L.H. 146, the Hon''ble Supreme Court
observed thus:
Once it is found that all the procedural requirements have been complied with, the Court would not ordinarily interfere with the quantum of
punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the
decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands
proved. (See Sangfroid Remedies Ltd. Vs. Union of India (UOI) and Others,
17.1. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or
sentiment, overturn a legal order.
The Hon''ble Supreme Court, in the recent case of Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar
Choudhuri and Others, has held thus:
The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the
discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such
discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault
In view of the above principles laid down by the Hon''ble Supreme Court in various judgments it clearly transpires that the judicial review of
administrative action or of proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable,
irrational or suffering from any procedural impropriety, and that the High Court in exercise of jurisdiction under Article 226 or 227 should not
interfere with the legal orders of Administrative Authorities. So far as the facts of the present case are concerned, as stated hereinabove,
Respondent No. 3 - the CEGAT has upheld the order of Respondent No. 2, revoking the licence of the Petitioner as CHA on the ground of
Petitioner having committed breach of statutory regulations and the misconduct by misusing its licence. In the opinion of this Court, once the
decision of the Respondent Authorities that the Petitioner committed violation of statutory regulations and the misconduct is found to be within the
legal parameters, all the legal consequences as a result of such violation and the breach have to follow. The case of the Petitioner being the case of
contravention of said regulations and misuse of licence as CHA, the Respondent Authorities have rightly revoked the licence of the Petitioner. The
said decision having been arrived at by the Respondents, after taking into consideration all relevant material and the said Regulations, and after
following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational. Under the
circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine
of proportionality. The Petitioner having failed to point out any perversity or unreasonableness on the part of Respondent Authorities warranting
judicial intervention, this Court does not find any merits in the present petition.
In that view of the matter, the petition deserves to be dismissed and accordingly is dismissed. Rule stands discharged. No order as to costs.