Judgment:
Mukul Mudgal, J.
1. This writ petition challenges the order dated 3rd August, 1999 of the Appellants Committee, Ministry of Commerce passed in an appeal against an order dated 6th April, 1998 passed by the Additional Director General of Foreign Trade. The order of the Additional Director General impugned in the appeal arose on account of a show cause notice issued to the petitioner which averred that the petitioner had failed to fulfill the export obligation within the stipulated time and for stipulated value addition. The case set out against the petitioner that the committed value of the exports was Rs. 3042 lakhs and out of the committed value of export, the petitioner has made exports of only Rs. 73.02 lakhs. On account of this view and on account of the findings of the Additional Director General of Foreign Trade, respondent No. 3, that the noticee firm had not appeared before him, the order imposing the fine of Rs. 50,00,000/- was passed against the petitioner. In coming to this conclusion the Additional Director General of Foreign Trade recorded the following findings:-
'No reply was received from the noticee firm in response to the show cause notice and the show cause notice addressed to their Bombay office at '84 Vallabhbhai Road, Vile Parle (West), Bombay - 400056' was received back with the post remark 'Left'. thereforee copies of the show cause notice were sent to the O/o Jt. DGFT, Hyderabad, Bangalore/Bombay for personal delivery. O/o Jt. DGFT, Bangalore, could personally delivery the show cause notice to the firm at their address, 209, Raheja Chambers, 12-Museum Road, Bangalore, and took receipt of the same. Since there was no reply to the show cause notice, I decided to call the party for personal hearing on 6.12.96. The letter dated 3.10.96, to this effect was issued to the noticee firm at their Bangalore and bombay address. Again the letter addressed to their Bombay address was received back undelivered from the postal authorities. As no one from the noticee firm;s side appeared before me on the date of personal hearing, I decided to give one more opportunity of P.H. for 4.7.97. Letter informing the next date of P.H. was sent to the party on 5.5.97 but again no one appeared on the appointed time and date thereforee I decided to give one more chance to them to explain their case in person before me on 1.9.97. The letter conveying the date of PH. for 1.9.97 was issued to the noticee firm at their Bangalore and Bombay address on 7.7.97 by registered post but this time also no one appeared before. I am of the view that the noticee firm is not interested in representing their case before me. I thereforee have no option except to decide the case on merits on the basis of documents available on record.
I find that in this case the show cause notice of even number dated 25.3.96 sent to the noticee firm by Registered AD post has not been replied to and the opportunity of personal hearing allowed to them to present their case on 6.12.96, 4.7.97, 1.9.97, 10.11.97, 22.12.97 and 19.1.98 have also not been availed of by the party.'
2. The above order was assailed in appeal before the Appellate Authority which has passed the order dated 3.8.99 which is impugned in this writ petition. The challenge of the petitioner is two fold (1) That the impugned order in appeal does not give any reasons and accordingly deserves to be set aside and (2) that the original order of the Additional Director General of Foreign Trade was passed in violation of principles of natural justice as the petitioner was not heard. In response to the Mr. Jayant Bhushan appearing on behalf of the respondent submitted that the impugned order gave reasons in the second paragraph which says that the export obligation of Rs. 3042 lakhs were not fulfilled as exports were made for only Rs. 73.02 lakhs leading to a value addition which was in the negative. The order impugned in appeal reads as follows:-
'The appeal was heard in the Appellate Committee meeting held on 3/8/99. Shri L.P. Dhir, Advocate appeared on behalf of the appellant.
The brief facts of the case are that the firm obtained permission vide letter No. PER: 42(88)/E.O.77/89/Misc. dated 24/8/89 by the SIA for setting up a 100% EOU in Nalgonda in Andhra Pradesh for manufacture and export of cut and polished granite tiles and slabs. The permission was subject to the condition that the entire production would be exported and the Value Addition should be minimum of 58.4%. A report from DC, Vishakhapatnam Export Processing Zone showed that the VA achieved was in negative (-126.32%) against the stipulated VA. The exports made were for Rs. 73.02 Lakhs against the committed Export Obligation of Rs. 3042 lakhs. A penalty of Rs. 50.00 lakhs was imposed by Addl. DGFT for non-fulfilment of Export Obligation and Value Addition.
Based on the arguments presented by the appellant and the documentary evidence, the Committee rejected the appeal.'
3. He further states that even otherwise it is settled law in view of the decision of the Supreme Court in Chittaranjana Dao vs . State of West Bengal, : [1964]3SCR237 that in an order of affirmation, reasons need not be given and accordingly the impugned order was sustainable. Learned counsel for the petitioner has relied upon three judgment. In College of Vocational Studies vs. S.S. Jaitely, AIR 1987 DELHI 134, it has been stated that the reasons must be given by the arbitrator for arriving at a conclusion otherwise it will not be possible to find how and why the arbitrator arrived at the figure impugned In my view the judgment cannot apply to the present case because this is the judgment which was in respect of an original award and not an appellate order. There is no dispute that the original order of the Additional Director General of Foreign Trade has given reasons. The brief reasons given in paragraph 2 of the impugned order dated 3rd August, 1999 cannot be said to be no reasons at all. Even otherwise I am satisfied that the order dated 6th April, 1998 challenged before the Appellate Committee does not suffered from any legal infirmity. Learned counsel for the petitioner has also relied on M.L. Jaggi vs. Mahanagar Telephones Nigam Limited (1996) 3 Supreme Court Cases 199 where it has been stated that in an award under Section 7-B of the Telegraph Act, an arbitrator must record the reasons where it affects the public interest. I have already recorded that the reasons were recorded in the original order. In this view of the matter, I am satisfied that the decision relied upon would not apply to the present case particularly when the order of the appellate authority extracted above in fact contained brief reasons.
4. In so far as the second plea of the petitioner is concerned that the proceedings were ex-parte and hence against the principles of natural justice, a finding of the fact has been recorded by the respondent No. 3 that the petitioner has not chosen to appear inspire of being served. A bare perusal of the order shows that repeated efforts were made to serve the petitioner who was in fact served as found by respondent No. 3. The petitioner cannot claim that there must be separate service for each hearing. In this connection the petitioner has relied upon the judgment reported in (1989) ITR 176 , R.B. Shreeram Durga Prasad and Fatehchand Nursing Das vs. Settlement Commission (IT and WT) and another, wherein the Supreme Court has observed as follows:-
'We are definitely of the opinion that, on the relevant date when the order was passed, that is to say, August 24, 1977, the order was a nullity because it was in violation of the principles enunciated by this Court in State of Orissa vs . Dr. (Miss) Binapani Dei : (1967)IILLJ266SC as also the observation in Administrative Law by H.W.R. Wade, 5th Edition, Pages 310-311, that the act, in violation of the principles of natural justice or a quasi-judicial act in violation of the principles of natural justice, is void or of no value. In Ridge v. Baldwin [1964] AC 40 and Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147, the House of Lords in England has made it clear that breach of natural justice nullifies the order made in breach. If that is so, then the order made in violation of the principles of natural justice was of no value. If that is so, then the application made for the settlement under section 245C was still pending before the Commission when the amendment made to the Finance Act of 1979 came into effect and the said amendment being procedural, it would govern the pending proceedings and the commission would have the power to overrule the objections of the Commissioner'.
5. The learned counsel for the petitioner, Shri L.P. Dhir, contended that there was violation of natural justice in the present case and accordingly the impugned order of the Additional Director General for Foreign Trade was non est.
6. I have already come to the conclusion that the petitioner was aware of the proceedings and in fact learned counsel for the petitioner does not dispute that the petitioner was aware of the proceedings and that the counsel for the petitioner had made a request for exposit facto adjournment on 1.12.97 to the authority on the ground of personal reasons for a hearing scheduled on 1.9.97 when in fact none appeared before respondent No. 3 on which date the case was not taken up by respondent No. 3. Eventually the case was taken up for hearing and decided on 6.4.98. In fact the plea of the petitioner in paragraph 3 of the Writ Petition is to the following effect.
'What is more, it has been stated, wrongly though, that the Petitioner did not attend the personal hearing on 4.7.1997 and 1.9.1997 whereas ANNEXURE 'NN' & 'OO' (copies enclosed herewith) would show and conclusively prove that the Petition's Counsel attended before him but his Private Secretary, Shri Patanjali Sharma recorded on the respective Notices postponement of the hearing.'
7. Is contradicted by the following contents of the letter of the petitioner's counsel dated 1.12.97.
'We wish to inform you that the counsel for the above named company could not appear before this Authority on 01.09.97 because of the reasons that Mother of the Counsel was undergoing surgical operation and thereforee non-appearance was neither intentional nor deliberate.
2. However, the counsel for the company had appeared on previous two dates, i.e. 04.07.97 & 01.09.97 however the matter could not be taken up since the presiding officer was busy/on leave. The copy of the said notices dated 05.05.97 and 07.07.97 is annexed herewith. This demonstrates that the company is serious about representing its matter and non appearance on 01.09.97 was not intentional.'
8. Thus the averment of the petitioner in the Writ Petition that he did attend the hearing on 1.9.97 is clearly wrong even according to his counsel's letter dated 1.12.97 where absence from the hearing on 1.9.97 is admitted. I am of the view that in case the petitioner is represented by counsel, it is for the counsel to ascertain the next date particularly when he himself made a request for accommodation after being absent on a personal ground. A quasi judicial authority is not bound to communicate all dates of adjourned hearings to the petitioner particularly when the petitioner is represented by counsel. Furthermore once counsel seeks accommodation exposit facto, then the counsel was duty bound to ascertain the next date and appear. Absence of the counsel in such a situation cannot by any stretch of imagination be said to violate principles of natural justice. Even otherwise the findings of fact regarding service on the petitioner and his continued absence for a considerable period are pure findings of the fact not amenable to interference in the writ jurisdiction under Article 226 of the Constitution. The learned counsel for the petitioner has also relied on a judgment reported in : [1990]1SCR909 , Shri Sitaram Sugar Co. Ltd. and Anr. vs. Union of India which observed as follows:-
'52. The true position, thereforee, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.'
9. There cannot be any dispute about the principles laid down in the above judgment which are indeed binding. However, in my view that judgment does not apply in the present case as the petitioner is unable to persuade me to the view that the impugned order is contrary to the constitution or is arbitrary or unreasonable. In this view of the matter there is no merit in the writ petition. it is accordingly dismissed.
10. At the request of the learned counsel for the petitioner this order of dismissal will not come into effect for a period of six weeks from today.