ORDER
A.M. Sapre, J.
1. By filing this writ under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the order, dated 25-9-2002 (Annexure P-9) as also the order dated 29-11-2002 (Annexure P-13) passed by Commissioner, Customs and Central Excise, Indore. In order to appreciate the issue involved and urged, few facts need mention in brief.
2. Petitioner - a limited company is engaged in the business of manufacture of various types of 'Miscellaneous Fluids' and Patent Proprietary Medicines.
3. Dispute arose between the petitioner and the Central Excise Department in relation to excisability of certain products manufactured by the petitioner. This led to issuance of show cause notice, dated 7-6-2002 by the respondent No. 2 Commissioner Central Excise to petitioner. The petitioner was asked to reply.
4. It appears that the case was fixed for proceedings before the Commissioner on 20-9-2002. The petitioner sought adjournment on 20-9-2002, inter alia on the ground of non-availability of their Counsel who was to come from out side (Delhi). It is not in dispute that learned Commissioner did not pass any order on the adjournment request made by the petitioner on 20-9-2002 the same day and it further appears that eventually the learned Commissioner passed the final order, dated 25-9-2002 (Annexure P-9) on the aforesaid show cause notice against the petitioner. In terms of an order, huge liability of excise by way of demand towards duty as also penalty has been levied. The petitioner then on 3-10-2002 applied to Commissioner praying for setting aside of an ex parte order dated 25-9-2002. Since no orders were being passed on their application dated 3-10-2002 and hence, petitioner came to this court in writ being W.P. No. 1606 of 2002 seeking quashing of order dated 25-9-2002 or in the alternative for a mandamus directing the respondent No. 2 to decide the application made by the petitioner on 3-10-2002 for setting aside of an ex parte order, dated 25-9-2002 referred supra on the ground that sufficient cause having been note out on the date fixed, the order dated 25-9-2002 be set aside and petitioner be given an opportunity to defend their case on merits. This Court by order dated 24-10-2002 acceded to the later request made by the petitioner and accordingly, directed the learned Commissioner to decide the application dated 3-10-2002 made by petitioner on its merits keeping in view the law laid down by courts by laying judicial precedents. It is in compliance to this writ, the, learned Commissioner decided the application made by the petitioner dated 3-10-2002 by passing the impugned order, dated 29-11-2002 (Annexure P-13). In the opinion of learned Commissioner no case having been made out for setting aside of an order dated 25-9-2002 by the petitioner, the application filed by the petitioner was rejected giving rise to filing of this writ. Notice of this writ was issued to respondents. They are served and represented. They have also filed return and defended the impugned action including passing of the impugned orders.
5. Heard Shri Vivek Tankha, learned Senior Counsel with Shri Vivek Saran, learned Counsel for the petitioner and Shri B.C. Neema, learned Standing Counsel for Union of India.
6. Learned Counsel for the petitioner in substance made two submissions, while assailing the impugned two orders dated 25-9-2002 and 29-11-2002. In the first instance, he contended that learned Commissioner committed an error of law in proceeding ex parte on 25-9-2002 when he proceeded to pass a final order on merits on the show cause issued to the petitioner resulting in depriving the petitioner of an opportunity of being heard on merits of the case. In the second place, learned Counsel contended that in any event, learned Commissioner should have allowed the restoration application when made by the petitioner on 3-10-2002 as it did constitute a sufficient cause for setting aside of an order dated 25-9-2002. Learned Counsel maintained that too technical approach resorted to by the learned Commissioner has resulted in causing extreme prejudice to the petitioner because they were deprived of placing their case on merits before the learned Commissioner before they suffered adverse orders. It was contended that no prejudice would have been caused to department if the petitioner had been afforded a reasonable opportunity of being heard in answer to show cause and then an order on merits had been passed one way or other. In reply, learned Counsel for the respondent prayed for defending the impugned order by contending that looking to the conduct of petitioner in the entire matter, no case for interference in the impugned action is called for hence the impugned orders be upheld.
7. Having heard the learned Counsel for the parties and having perused the record of the case, I am inclined to allow the writ and quash the orders dated 24/25-9-2002 and 29-11-2002.
8. In my considered opinion, the approach of the learned Commissioner in deciding the issue was too technical, when he proceeded to find fault in petitioner's case. An approach which results in defeating the very means to obtain justice from a judicial/quasi judicial authority can never be regarded as judicial one and hence, should not be encouraged.
9. An approach of every judicial authority who is invested with the power to decide the fate of citizen's rights (whether property or personal) should always be to ensure in its real perspective that before any decision is taken against a citizen, he is afforded fullest opportunity to defend himself. Indeed, while following this principle, it causes no prejudice to an authority but in converse, it results in depriving a citizen of their fundamental right enshrined in Constitution. There can be no greater injury than the one suffered by the citizen, if he is deprived of his fundamental right without giving him a real opportunity to defend his property/personal rights. A citizen must have a implicit faith on the action taken by a judicial authority though eventually it may go against him. He must have a sense of feeling that action taken was in accordance with law because it was taken after hearing him. The classic words so frequently used in legal system namely 'opportunity of being heard' and 'observance of principle of natural justice' though not defined in any codified Act have acquired definite meaning in passage of time by series of judicial precedents rendered by Privy Council, House of Lords and our Supreme Court for being followed by every judicial and quasi judicial authority while deciding the rights of citizen. Indeed, no authority is needed to even quote such well settled legal principles on which the entire legal system is based.
10. In my considered opinion, when I examine the facts of the case, I find that learned Commissioner was too technical in his approach in deciding the issue while dealing with the application made by the petitioner on 3-10-2002. The learned Commissioner scanned the conduct of petitioner like the one needed for deciding the issue on merits. It was not a case which was pending for years and being old one, needed utmost precedence for being disposed of without any further delay. It was also not a case where petitioner could be held to be chronic defaulter deliberately indulging consistently in delaying methods by resorting to one or other modes to avoid any decision on merits. It was also not a case where they showed any disrespect to the Institution. Seeking an adjournment is not something unnatural. It is indeed inherent in every case pending in courts, Tribunal and Authorities. It is always for the authority to decide as to whether a case for adjournment is made out and if so on what conditions, the same should be granted. A provision is made by way of exercise of judicial discretion to impose stringent conditions, or payment of cost to balance the equities and rights of the parties. Indeed, it is this principle that is laid clown in Sangram Singh's case (AIR 1955 SC 340) by their Lordships of Supreme Court which should be implemented in its real perspective so that justice is done to both parties. In my considered view, this principle though kept in consideration by the learned Commissioner but was not given effect to in this case causing greater hardships and prejudice to the petitioner. The petitioner was not asking for a decision in their favour on merits but was only asking for an opportunity to place their case on facts and law in answer to the show cause, so that they may have a feeling that decision was given (though against or may not be against them) after hearing them.
11. Learned Counsel for the respondent urged that once an order is passed by an authority, the remedy of petitioner lies in appeal and not in writ. I do not agree. The jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, is unfettered - it being an extraordinary in nature. It is always for preventing abuse of process of law, correcting the errors of law, and giving directions for observance of law to subordinate courts. Tribunals and authorities invested with judicial powers under any Act. This court while hearing the writ was not called upon to examine the merits and demerits of the case. That is for the appellate Tribunal to do it once a byparte decision is rendered on merits.
12. In my considered opinion, thus, the petitioner was able to make out a sufficient cause when they sought time on 20-9-2002 to learned Commissioner. They were entitled to file reply to show cause which they actually did by submitting on 27-9-2002 (Annexure P-3). It ought to have been taken into consideration on merits in its real perspective for deciding the issue sought to be made subject-matter of show cause.
13. Accordingly and in view of aforesaid discussion the petition succeeds and is allowed. Impugned order dated 24/25-9-2002 (Annexure P-9) and order dated 29-11-2001 (Annexure P-13) are quashed by writ of certiorari. The respondent No. 2 is directed to take the reply filed by the petitioner on 27-9-2002 on record of the case. The petitioner is directed to appear before the learned Commissioner on 3-2-2002 to participate in the proceedings and may file any other documents in support of their case. It is made clear that petitioner will not be allowed to indulge in any delaying tactics to prolong the proceedings which will be completed by passing final orders within three months. As a precondition the petitioner is saddled with a cost of Rs. 10,000/- for being deposited in the office of respondent No. 2. Let the cost be deposited on or before 3-2-2002. It is also observed that this court has not applied its mind to the merits of the controversy sought to be made subject-matter of show cause while deciding this writ and hence, the Commissioner will decide the case strictly on its merits and in accordance with law uninfluenced by any of the observations made by this court in this writ.