Vatan Textiles Limited v. Union of India

Judgment

1. Union of India Through Secretary, Ministry of Commerce & Industries, Udyog Bhavan, New Delhi.

2. Chairman, Appellate Committee, Additional Secretary, Ministry of Commerce & } } } } } } } } } } .... PETITIONER Industries, Udyog Bhavan, New Delhi.

T. Shrinidhi 2 } } } Director, Ministry of Commerce} & Industries, Department of Commerce, Udyog Bhavan, New Delhi. } } } .... RESPONDENTS Mr. R.F.Totala, Counsel for Petitioner. Mr. Alok Sharma, Assistant Solicitor for Union of India. [ CORAM : K.K.TATED, J. ] DATE : 24/7/2009 ORAL JUDGMENT :

1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this Petition is heard finally at the stage of admission.

2. Heard Mr. R.F. Totala, learned counsel for petitioner and Mr. Alok Sharma, Assistant Solicitor for Union of India. 3

3. By this petition under Article 227 of the Constitution of India, the petitioner challenges the Order dated 11/5/2009 passed by the Director, Ministry of Commerce and Industries, Department of Commerce, New Delhi in FA 12013/16/07-ADJ/AC. Learned Assistant Solicitor appearing on behalf of Respondent nos. 1 to 3 raised objection that the present petition is not maintainable before a Single Judge in view of the provisions of Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960. He submitted that in Rule 18, the Foreign Trade (Development and Regulation) Act, 1992 is not covered and, therefore, the present petition is not maintainable before the Single Judge. On the other hand, the learned counsel appearing on behalf of petitioner submitted that in view of Rule 18 (3) of Chapter XVII, the present petition is maintainable before the Single Judge. Sub Rule (3) of Rule 18 reads as under : “ R. 18 (3) – The decrees or the orders passed by any subordinate court (or by any quasi Judicial Authority ) in any Suit or proceeding (including Suits and proceedings under any special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court. ” 4

4. Learned counsel appearing on behalf of petitioner relied on Judgment in the matter of Principal, Micky School, English Medium V/s State of Maharashtra - 2005 (4) ALL MR – 958 and Smt. Savitri Chandrakesh Pal V/s State of Maharashtra & Oths. - 2009 ( 4 ) ALL MR – 200. In both these authorities, High Court has considered Bombay Appellate Side Rules under Chapter XVII Rule 18 (3) and held that all Writ Petitions under Articles 226 and/or 227 or under Article 226 or under Article 227 are to be heard by learned Single Judge of High Court. Exceptions having been provided by clause 2 – B of Chapter I and ratio laid down by Supreme Court in relation to Articles 323-A and B. Para 11 in Principal, Micky School, English Medium V/s State of Maharashtra - 2005 (4) ALL MR – 958 reads as under : “ In our opinion, the position in regard to hearing of writ petitions under Bombay High Court (Appellate Side) Rules, 1960 is clear. All writ petitions under Articles 226 and /or 227 or under Article 226 or under Article 227 are to be heard by learned Single Judge of this Court. Exceptions having been provided by clause 2-B of Chapter I and ratio laid down by Supreme 5 Court in relation to Article 323-A and B. Therefore, writ petitions covered by clause 2-B, writ petitions arising out of orders made by Administrative Tribunals established under 1985 Act and orders passed by such Special Tribunals as are created under the Constitution and all other matters are required to be heard by the learned Single Bench. The order impugned in the present petition is passed under the Provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, which is a special law enacted for protection of persons mentioned therein. It is therefore a special enactment or law and the order made thereunder is squarely covered by the provisions of Clause 3 of Rule 18 of Chapter XVII being the order made by an authority under Special Act. The Registry is therefore directed to place the matter before the appropriate bench. Interim order already granted to continue. ” 6

5. In view of both the authorities, I hold that the present petition is maintainable before a Single Judge.

6. It is the case of the petitioner that Development Commissioner, Ministry of Commerce and Industry passed an Order dated 5/7/2007 in File SEEPZ/SEZ/MTG/Order/2008/2005-2006/4880 and thereby imposed penalty of Rs. 5,00,000/- (Rupees Five Lacs only) under Section 11 (3) of the Foreign Trade (Development and Regulation) Act, 1992 for misuse of EOU Scheme. Being aggrieved by the said Order dated 5/7/2007, petitioner preferred an Appeal before Respondent no. 2, who is appellate authority in law and prayed for setting aside impugned order dated 5/7/2007. Learned counsel appearing on behalf of petitioner submitted that the Under Secretary to the Government of India by letter dated 24/2/2009 intimated to the petitioner that the hearing of the Appeal is kept on 2/3/2009 at 3.00 p.m. Said letter was received by the petitioner on 27/2/2009 i.e. just before 3 days of hearing. Therefore, the petitioner immediately by the letter dated 28/2/2009 informed the Under Secretary to the Government of India, Ministry of Commerce and Industry that it is not possible for them to remain present on 2/3/2009 at 3.00 p.m. because of short notice. It is also stated in the said letter that on the same day, their 7 Consultant Mr. Ashok Nawal has to attend pre-schedule personal hearing before the Hon’ble Assistant Registrar, CESTAT (WZB), Ahmedabad. Therefore, the petitioner requested to inform them the next date of hearing at least one week in advance. The same is forwarded by the petitioner through currier Blue Dart as well as by Fax. The Fax report is annexed at Page no. 48 of the Writ Petition. Even the Blue Dart currier by letter dated 20/5/2009 confirmed that they delivered letter dated 20/2/2009 to the addressee on 2/3/2009 at 11.27 hours.

7. The learned counsel appearing on behalf of petitioner submitted that in spite of this, the appellate authority passed exparte order and rejected their Appeal. Paragraph 3 of the impugned Order passed by the Director reads as under : “ The Appeal was listed in the Appellate Committee Meeting dated 2/3/2009. No one from the company represented. The Committee decided to confirm the order passed by the D.C.”

8. The learned Assistant Solicitor appearing on behalf of 8 Respondent nos. 1 and 2 justified the Order passed by the appellate authority on the ground that though the concerned Department by the letter 24/2/2009,informed the date of hearing of the Appeal, no one remained present on behalf of petitioner and, therefore, the order came to be passed exparte.

9. It is clear from the letter dated 20/2/2009 written by the petitioner to the respondent that they received the intimation of hearing just before 3 days and those facts were communicated to the Respondent well in advance. In spite of that, the appellate authority passed exparte order dated 11/5/2009.

10. In any case, the petitioner is entitled personal hearing before the appellate authority and for that purpose they require sufficient notice. A notice issued by the respondent authorities dated 24/2/2009 was received by the petitioner on 27/2/2009, in which it was stated that the hearing is scheduled on 2/3/2009 i.e. just within 3 days. Considering these facts, the order passed by appellate authority dated 11/5/2009 is against the natural justice and, therefore, same is liable to be set aside.

11. Considering the above noticed facts and circumstances, the 9 Order passed by the appellate authority dated 11/5/2009 is set aside and Appeal before the appellate committee, Ministry of Commerce, Udyog Bhawan, New Delhi is restored. Writ Petition is allowed and Rule is made absolute accordingly. JUDGE [ K.K. TATED ] knp/wp3712.09 10 11 12 13 14 15 16 17 18