Judgment:
A.K. Yog, J.
1. The petitioner/Aley Haider, before us, has approached this Court by filing the present writ petition under Article 226, Constitution of India being aggrieved by the appellate judgment and order dated 5/11-10-2004 passed by the Chief Commissioner, Custom and Central Excise, Meerut Zone, Meerut in Appeal No. 05/CC/Meerut/2004 (Annexure-7 to the writ petition) rejecting request of the petitioner to permit him to avail one more chance to clear Customs House Agents Examination (for short 'CHA Examination') as contemplated under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 (for short 'Regulations, 1984).
2. The brief facts, giving rise to the present writ petition, are that the petitioner was given temporary CHA licence dated 20-11-2000 initially for one year (which was subsequently extended for another one year) as Customs House Agent (called-'CHA') at ICD Moradabad under Regulation 8 of Regulations, 1984. The said temporary licence in favour of the petitioner was to expire on 19-11-2002. The said licence was not extended and at the same time the concerned Authority refused to grant regular licence as contemplated under Regulation 10 of the Regulations, 1984 on the ground that the petitioner, in spite of required number of opportunity being given, failed to pass the examination provided under Regulation 9 of the Regulations, 1984. The petitioner was allowed, vide order dated 21-05-2003 (infra) passed by Chief Commissioner (Annexure-5 to writ petition), to continue to work as CHA at ICD Moradabad till declaration of his result in the written examination held by him on 14-6-2002.
3. Under Regulations, 1984 within the relevant period of two years (viz. 20-11-2000 to 19-11-2002) it is claimed that 'examination' was held on four occasions, namely, 29-12-2000, 18-7-2001, 28-12-2001 and 14-6-2002.
4. According to the petitioner, he failed to appear in the examination held on 29-12-2000. The reason for not appearing is disclosed in paragraph-15 of the writ petition which reads:
'15. That personal hearing was granted on 21-5-2003 by the respondent No. 3. A record of personal hearing was drawn wherein it was mentioned that the petitioner had been given only two chances to appear in the examination under Regulation 9. It was further mentioned that as regards the examination held on 29-12-2000 no intimation had been given to him by the Department either by any communication or any notice pasted at the notice-board for conducting the examination, due to which he could not appear in this examination, therefore, in fact he had got only two chances against the admissible three chances to clear the examination in question. The respondent No. 3 observed that the petitioner is, therefore, entitled to avail one more chance. Till such time he should also be permitted to conduct the business as CHA.
A true copy of the record of the personal hearing made on 21-05-2003 is being filed herewith and marked as Annexure No. 5 to this petition. '
5. In support of the above pleading, the petitioner relies upon the order dated 21-5-2003 passed by the then Commissioner, Central Excise, Meerut Zone, Meerut/Annexure-5 to the writ petition wherein the said Authority noted- '...As such, he could not appear in the said examination. Therefore, in effect, he got only two chances against the admissible three chances to clear the examination in question. He is, therefore, entitled to avail one more chance. Till such time, he should also be permitted to conduct the business as CHA.'
6. Aforequoted paragraph-15 of the writ petition has been controverted by the respondents vide paragraph-19 (sworn on record) of the counter affidavit which read :
'19. That the contents of paragraph 15 of the writ petition are not admitted in the form as they are stated and in reply thereof, it is submitted that the explanation with regard to the examination held on 29-12-2000, is an afterthought as not a single word is stated by the petitioner in his memo of appeal. It is further submitted that the petitioner's stand that no intimation regarding the examination held on 29-12-2000 was given to him, is not tenable as the said examination is held after due information to the public and the petitioner aspiring for the same should have kept the track of the same himself. Thus, the petitioner was granted enough opportunity to qualify the examination.'
In rebuttal, paragraph-11 of the rejoinder affidavit reads:
'11. That the contents of para 19 of the affidavit are denied. The submission of the deponent with respect to the examination held on 29-12-2000 is not an after thought. The same submission was made in the earlier writ petition numbered as 941 of 2004. Further, allegation that the examination conducted on 29-12-2000 was held after due information to the public is wrong and denied. Neither any public notice was issued nor copy of the same has been filed. Further the manner of giving public notice has also not been mentioned in para 19 of the affidavit.'
7. We notice that the respondents, apart from having failed to disclose the mode of alleged 'due information to the public' have also not cared to disclose even the date when such notice was given to the public.
8. In that view of the matter, it is not possible to accept the stand taken by the respondents who were possessed of the relevant material but chose not to disclose; giving rise to presumption against them.
9. In our opinion it is not at all relevant as to whether the person concerned had information/intimation of the examination being held under Regulation 9 of the Regulations, 1984 because even if one had notice but opted not to appear, it cannot be said that he had 'availed' the opportunity. It will be a case where one decides not to avail the opportunity.
10. To appreciate the above, Regulation 8(1) and Regulation 9(1) and 9(2) of the Regulations, 1984 are reproduced below:
'8. Grant of temporary licence- (1) Any applicant whose application is received within the last date specified in Regulation 4 and who satisfies the requirements of Regulations 5 and 6, shall be permitted to operate as Custom House Agent at the Customs Station for which the application is made initially for the period of one year against temporary licence granted by the Commissioner in this regard in Form B (See Form No. 48 in Part 5):
Provided that when evidence is produced to the Commissioner that the applicant has already availed of two chances for qualifying in the written or oral examination prescribed in these regulations and would like to avail of the third chance as soon as the next examination is held in terms of regulation 9 and that the applicant has been able to account for the minimum volume of work prescribed for such agents in the course of one year's working, the Commissioner may extend the aforesaid period of one year for which the temporary licence has been granted by another six months or such further period not exceeding one year to enable the applicant to avail of the third chance for qualifying in the examination in terms of Regulation 9. While granting such extension, the Commissioner of Customs shall satisfy himself that the requirements of Regulations 10(1) (a) and 10(1)(b) had been fully met by the applicant.
9.Examination of the applicant-(1) The holder of a temporary licence in the case of an individual and the person or persons who will be actually engaged in the work of clearance of goods through customs on behalf of the firm or company holding a temporary licence, as the case may be, shall be required to qualify in examination, at the earliest opportunity. Such person or persons shall be eligible to appear in the examination as soon as a temporary licence is granted and shall be permitted to avail of three chances within a period of 2 years from the date of issue of the temporary licence on payment of prescribed examination fee of Rs. 500/-for each examination.
(2) The examination referred to in Sub-regulation (1) shall include a written and oral examination and will be conducted twice every year. Each applicant would be permitted to avail of a maximum of three chances to qualify in the said examination but all such chances should be availed of within a maximum period of 2 years from the date of grant of temporary licence. ' It is interesting to note that in the proviso attached to Regulation 8(1), the relevant expression is- 'to enable the applicant to avail of the third chance for qualifying in the examination in terms of Regulation 9'. On the other hand, the relevant expression used in aforementioned Regulation 9 is-'....Such person or persons shall be eligible to appear in the examination as soon as a temporary licence is granted and shall be permitted to avail of three chances within a period of 2 years from the date of issue of the temporary lincence....'
11. A conjoint reading of the two expressions, in Regulation 8(1) and 9(1), shows to 'enable the applicant to avail' three chances for qualifying the examination is one thing but embargo placed is by the expression '.Shall be permitted to avail of three chances' used in Regulation 9(1) of Regulations, 1984. By giving notice of holding a particular examination requirement of Regulation 8(1) alone is fulfilled and not that of Regulation 9(1).
12. Mere offering of opportunity by holding an examination and giving prior information to the concerned is not enough to presume that a person had availed himself of the chance offered to him. In other words, if information of proposed examination is given, but a person declines or otherwise opts not to appear in the said examination, then he certainly declines to avail the 'opportunity of appearing in that examination' and hence, the question of 'permission being granted' will not at all arise.
13. In that view of the matter, we have no doubt in our mind that even if the examination was held on 29-12-2000 after information being given (as disclosed by the respondents), the same cannot be counted towards the chance/opportunity being available by the petitioner and this examination cannot be counted towards maximum number of three chances contemplated under Regulation 9 of the Regulations, 1984.
14. Reading of Regulations 8 and 9, as elucidated by us, is in consonance with the view taken by the Chief Commissioner in his order dated 21-5-2003/Annexure-5 to the writ petition (referred to above).
15. We may notice the pleadings in defence taken on behalf of the respondents in their counter affidavit that the petitioner never raised the question of non-receipt of the information regarding holding of examination on 29-12-2000. It is true, as pointed out by the respondents in their counter affidavit, that no plea in this respect was taken in the Memorandum of Appeal but as discussed above, the said issue has no relevance at all.
16. There is no dispute as far as the examination dated 18-7-2001 and 14-6-2002 are concerned. Parties agree that the petitioner had appeared and availed these opportunities.
17. The dispute is with respect to the examination said to have been held on 28-12-2001 at NOIDA. It has come on record (as also not disputed by the learned counsel representing the respondents) that 'question papers' were not received at the Centre and the 'examination-process' could not start and the examination as such was postponed.
18. There is no difficulty in holding that the examination proposed on 28-12-2001 actually never took place and it cannot be treated/construed 'as holding of the examination'; the candidates were given no opportunity at all to undertake the exercise of attempting the question paper which was never made available to them. Mere fixation of date for holding examination is nothing but a paper work.
19. In that view of the matter, there is no occasion to argue that the said examination was at all held. There is thus no basis to say that the petitioner availed 'opportunity' which was never offered to the candidates, including the petitioner.
20. It is, therefore, abundantly clear that the petitioner had availed two chances only and he was, thus, entitled to avail the third chance.
21. Coming to the impugned judgment and order dated 11-10-2004 passed by the Chief Commissioner/Respondent No. 3, one finds that the said respondent (while deciding the appeal preferred before it under Regulation 8(2) of the Regulations, 1984) has not touched the issue raised by the petitioner before him that he had not availed three chances inasmuch as the examination held on 29-12-2000 had to be excluded when computing the 'chances availed' by him.
22. The appellate authority, on the other hand, non-suited 'the petitioner and dismissed the appeal on the ground that the three chances contemplated under the aforementioned Regulation had to be availed within a period of two years i.e. on or before 19-11-2002 in the instant case.
23. A bare reading of Regulations-8 and 9 of the Regulations, 1984 would show that granting opportunity of passing the examination contemplated therein within the period two years refers to the Commissioner of Customs i.e. original authority. On that basis Commissioner, Customs is not competent to extend the aforesaid statutory period of two years on his own. However, the said limit of two years is not referable to the competence/power of the Appellate Authority while deciding the appeal under Regulation 8(2) of the Regulations, 1984. If we accept the reasoning given by the Appellate Authority that two years having expired, no relief could be claimed by the petitioner even if he was not allowed to avail the three chances, then the Regulation 8(2) which provides for a remedy of filing the appeal becomes nugatory or redundant. It will be appreciated that under normal circumstances one can comprehend that a dispute of present nature will arise after expiry of two years from the date of grant of licence; and if that be so, the appeal shall normally be decided after two years. The Appellate Authority cannot decline to give effective relief on the ground of two years restriction as otherwise the Appellate Authority shall never be (exception apart) normally in a position to grant relief. Taking a view, which renders the appellate provision itself redundant, is not warranted in law. Normal rule of interpretation is that provisions should be read harmoniously in a way which avoids conflict or renders any provision nugatpry/redundant.
24. In that view of the matter, we find that in case the petitioner was not allowed three chances of passing the examination as contemplated under Regulation 8 and 9 of the Regulations, 1984, there was no embargo upon the power of the Appellate Authority (Chief Commissioner) to allow the appeal and direct the concerned authority to offer opportunity to the petitioner so that he is able to avail the remaining one chance to pass the examination.
25. Learned counsel for the respondents refers to Notification No. 21/2004-Customs(N.T.).
26. We have perused the same, particularly Regulation 8 wherein we find that the examination is scheduled to be held twice every year and a person is entitled to appear in the examination irrespective of the number of chances and further that the applicant is allowed a maximum period of seven years within which he has to pass the written and oral examination. We find that the view taken by us of Regulations, 1984 is also in consonance with the subsequent policy adopted by the Department.
27. Before we part with the judgment, we may also refer to the decision of the Apex Court in the case of D.V. Bakshi and Ors. v. Union of India and Ors. - : 1993ECR209(SC) cited by Sri Kshitij Shailendra, Advocate on behalf of the petitioner. The decision does not help the petitioner in the facts and circumstances of the present case, particularly in view of the fact that the aforesaid judgment does not advert to the issue in hand, namely, whether two years' maximum period having expired, the Appellate Authority was competent to grant relief or not. We also find that the aforesaid decision was rendered on July 14, 1993 whereas the explanation to Regulation 9(2) was added on 28-1-1994 and the ambiguity, if any, was removed in consonance with the aforementioned decision of the Apex Court.
28. In the result, the impugned appellate judgment and order dated 11-10-2004 passed by the Chief Commissioner, Central Excise, Meerut Zone, Meerut/Annexure-7 to the writ petition cannot be sustained.
29. Consequently, the impugned judgment and order dated 10/14-1-2003/Annexure-3 to the writ petition passed by the Commissioner, Customs and Central Excise, Meerut/Respondent No. 4 and judgment and order dated 5/11-10-2004 passed by the Chief Commissioner, Central Excise/Respondent No. 3 (Annexure-3 to the writ petition) are set aside. Further, a writ of mandamus is issued directing the respondents to permit the petitioner to appear at the ensuing examination so that he is able to avail the third chance as contemplated under Regulations 8 and 9 of the Regulations, 1984.
30. The writ petition stands allowed, subject to the above observations and directions.
31. In the facts of the case there shall be no order-as to costs.