Kalyan Jyoti Sengupta, J.
1. By this writ application the petitioners who had hitherto been recently a Custom House Clearing Agent, have impugned an interim order of suspension dated 31-3-04, purported to have been passed under new Regulation 20 Clause 2 of the Customs House Agent Licensing Regulation, 2004 which has come into force on 23-2-04. This impugned order owes origin to an incident took place in the year 2000. The petitioners cleared certain imported goods on behalf of their client as a duty free goods and on production of the advance licence. Later on it was found and further alleged that this licence was forged as the importer was not in existence. The Revenue Intelligence Department as well as the CBI took up investigation and they have found prima facie some materials, for which action has been taken under the regular Criminal Law as well as the Revenue Law.
2. It appears that on detection of the fraud and forgery and consequently the evasion of customs and other duties, the petitioners being agent paid the entire duty which would have been payable but for this advance licence. But then the petitioners have not been spared by the Revenue Department and he has been served with the show cause notice under Section 124 of the Customs Act in the month of March, 2003.
3. Perhaps in sequel to the aforesaid action under the regulatory measure the petitioners have sought to be brought to book and that is why it is said a proceeding is contemplated for passing appropriate order disciplining the petitioners as an agent for not discharging their duty, in violation of the various provisions of the Regulation, 2004.
4. The provisions of Regulation, 1984 stands superseded in view of the present Regulation, 2004. As such the petitioners are sought to be proceeded with under the present Regulation 20, Sub-section (2). The elaborate procedure has been laid down to discipline the agent which has been provided in Regulation 20, read with 22.
5. It appears under Sub-regulation (2) of Regulation 20, an emergent power has been conferred upon the Commissioner to take immediate measure in appropriate cases by suspending the licence of the Customs House agent where enquiry against such agent is pending or contemplated. It would be apposite to set out the aforesaid Sub-clause (2) of Regulation 20.
'Notwithstanding anything contained in Sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated'.
6. This interim order of suspension has been passed, as stated above, by the Commissioner of Customs. Mr. Banerjee, ld. Sr. Counsel appearing in support of the application, contends that aforesaid impugned order is a product of abuse of the power inasmuch as the same has been passed in arbitrary exercise thereof. He contends in the impugned order that there is no reason nor any circumstances spelt out apart from repeating and reproducing identical words as mentioned in Sub-regulation (2) for which immediate action is necessary. He contends that the reproduction of the aforesaid two words are not sufficient to invoke the jurisdiction to pass, so to say, a final order suspending the petitioners. He has drawn my attention to the language used in the impugned order which says that the petitioner has been forbidden to act as an agent in future. His contention is that whole idea of providing the sub-regulation is to take a preventive measure and not to take a punitive measure. This impugned order is nothing short of a punitive order.
7. According to him, the Customs Department could discover the alleged misconduct on the part of the petitioner in March, 2003 itself when the show cause notice under Section 24 of the aforesaid Act was served. So, had there been genuine urgency for which immediate action was necessary, the petitioner could have been suspended on that day itself. Nothing has happened during the course of one year and no further development for which immediate action is necessary. One year time is good enough to conclude that there could not be any emergent situation.
8. While giving reply to the argument of ld. Addl. Solicitor General that appellate provision under Regulation 20(8) is not an appellate provision in this matter. According to his own interpretation, there is no provision for appeal against this kind of order. He further contends that if Regulation 20(8) is read together with Section 129A, it will appear that this order is not an appealable order and the Appellate Authority cannot entertain this matter.
9. Even assuming this is an appellate provision, still then the power of judicial review cannot be taken away by the appellate provision and if litigant comes with a complaint, the impugned decision is arbitrary and mala fide and passed in breach of principle of natural justice which in its turn infringes fundamental right as guaranteed under Articles 14 and 19 of the Constitution of India this alternative remedy cannot be a bar. It is for the Writ Court in its wisdom in a fit case to entertain the writ petition but this jurisdiction cannot be circumscribed by any law. According to him, his client has been able to make out such case for which jurisdiction of this Court ought to be invoked under the public law field and in this case it is the only way out.
10. In support of his submissions on merit, he has cited a number of decisions of this Court in a case of this nature, wherein the guidelines has been laid down under what circumstances the aforesaid power under Regulation 20(2) this power can be exercised by the Commissioner. One of such decision is of a Division Bench of this Court reported in 1998 (104) E.L.T. 11 (Cal.), and another one of 1987 (28) E.L.T. 223 (Cal.) the other decisions which have been cited by him are in my view not relevant to this case.
11. Learned Additional Solicitor general without filing any affidavit has argued this matter. He submitted, that the provision of the appeal is there as provided in Regulation 22(8). Therefore, the petitioner has got alternative remedy and certainly they could resort to this. This Court ought not to have exercised this power of review. He contends that serious fraud have been detected and for this purpose the Department had to wait to have opinion about this matter vis-a-vis their role in this fraudulent act as Clearing Agents. He further submits that the Commissioner in his discretion has come to a subjective satisfaction that immediate action is necessary. It is a subjective satisfaction with an objective consideration that the immediate order of suspension is required. An Agent who is involved and has neglected in detecting great fraud should not be allowed to function as an Agent any more otherwise credibility and trust in the system of working will be impaired, if the petitioners are allowed to function.
12. Having heard the respective contention of the learned Counsels it appears to me, first point for the decision arises in this case is as to whether provision of Regulation 22 sub-regulation (8) is provision for appeal for the order of this nature or not. 1 have considered the contention and the learned Counsel for both the sides on this aspect before I opine in this matter. I set out the relevant provision.
'Any Customs House Agent aggrieved by any decision or order passed under Regulation 20 or sub-regulation (7) of Regulation 22, may prefer an appeal under Section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under Sub-section (1) of Section 129 of the Act.'
13. It is settled position of the law, the meaning of expression and language given in the statute has to be given the plain and simple meaning as it appears unless, it appears to be incongruous and absurd one. It says any decision or order passed under Regulation 20 and then suffixed by word 'or'. In this case 'or' has to be read disjunctively, If it is read conjunctively then meaning of the sub-regulation would be an absurd proposition. In my view the order passed under Sub-clause (8) Regulation 20 is an independent order and it does not depend upon any other order which might be passed under sub-regulation (7) of Regulation 22, because order under sub-regulation 20(8) can be passed irrespective of proceedings under Regulation 20 having been initiated because it could be passed even in contemplation of such proceedings.
14. Therefore, I am of the view that sub-regulation (8) of Regulation 22 covers the order of sub-regulation 20(2). According to me varieties of orders mentioned in Section 29A of the Act for appealability, are not exhaustive and the provision of Section 192A of the Customs Act had been adopted, for formation of an appellate forum. This has to be read along with Section 129A of the said Act, as if the same had been incorporated therein as part and parcel of the provision of Section 129A. Therefore, I am unable to accept the argument of Mr. Banerjee that the aforesaid provision does not apply in relation to this order and in fact Mr. Banerjee has placed an order of learned Tribunal which had entertained appeal of this nature.
15. Now the question remains as to whether this will operate as a bar in entertaining this writ petition. Nobody has argued that, no decision is required in this regard. But question is whether 1 will entertain this writ petition in exercise of my discretion or not. No affidavit has been filed so that I can assume that there is disputed question of fact. Only it is a question of lawful exercise of jurisdiction as conferred under sub-regulation (8) of Regulation 22.
16. In the writ petition, also in the argument of Mr. Banerjee it had been urged that the authority concerned has exercised its jurisdiction mala fide and in arbitrary manner because under this facts and circumstances of the case the aforesaid provision ought not to have been invoked. Moreover, no reason has been spelt out except reproducing the mechanical two words 'immediate action'. When an extremely adverse order has been passed, without making any provision for or affording opportunity of being heard, assignment of reasons with details for which the authority concerned has been compelled to take such action, is the sine qua non for a lawful order. One must understand why he has been served with the punitive order and to know the reasons, therefore, is the basic part of the Article 14 of the Constitution of India. Disclosure of reasons, when one's right is sought to be affected is part of law of transparency which in its turn is one of the facet of the principle of natural justice. Principle of natural justice has not been expressly provided though, in Article 14 of the Constitution of India but in my view it is in-built therein. Where there is a violation thereof, then obviously that is not in accordance with the constitutional mandate.
17. When I find this allegations of breach of principle of natural justice are there and the same have not been denied and disputed by filing affidavit I will not hesitate to entertain this application in exercise of power under Article 226.
18. Next question remains whether there was any facts and circumstances for which such urgent action could be taken. A Division Bench of this Court while entertaining an appeal involving the same subject, against the order of the learned Trial Judge, has observed in paragraph 5 of case reported in 1998 (104) E.L.T. page 11, that - purpose of resorting to immediate suspension of a licence because of some immediate action is to immediately stop the activities of the clearing agent so as to disable him from taking any further action in the matter, since, under a particular situation and under some given set of circumstances the requirement of immediate action may demand that the clearing agent may be immediately required to be prevented from working any further. The minimum that is required by the Commissioner to enable him to exercise such power is the spelling out of the circumstances in the order warranting the need to take such immediate action and to actually say that immediate action is indeed required in the matter.
19. Next in a judgment of ld. Single Bench reported in 1987 (28) E.L.T. 223 (Cal.) it has been observed that suspension of licence under Regulation 21(2) entails grave civil consequences. Therefore, hearing before making the suspension order is necessary. 'It is true that Regulation 21(2) is silent on the point, but in the circumstances of the case, there should have been observance of the rule since there is nothing to show that in view of any extreme urgency of the matter such observance would have frustrated the entire cause. If the statute conferring power is silent with regard to the giving of a pre-decisional hearing to the persons affected and the administrative decision taken by the authority involves civil consequences of a grave nature and no-review or appeal on merits against that decision is provided, the Courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically it would paralyse administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. In the instant case, the impugned administrative decision involves civil consequences of a grave nature in the sense that the business of the petitioner No. 1 has come to a standstill and there is no provision for review or appeal on merits against that decision and that being so, a minimal hearing should have been given to the petitioners particularly when there is nothing dependable to indicate that it would have paralysed the administrative process or frustrate any alleged need for utmost promptitude. Therefore, the suspension of licence without affording an opportunity of being heard was invalid.'
20. Now in the context of the aforesaid judicial observation text of the impugned order is required to be stated hereunder.
'Accordingly, an inquiry against the aforesaid CHA M/s. Loknath, Shipping and clearing Agency is contemplated under Regulation 2.0(2) of CHALK, 04 and it is considered to be an appropriate case where immediate action is necessary as because the said CHA M/s. Loknath Shipping & Clearing Agency have violated the provisions of CHALR, 04.
Therefore, I, on exercise powers vested in me under Regulation 20(2) of CHALR, 04, Order of suspension of Regulation CHA licence bearing No. L-10 of M/s. Loknath Shipping & Clearing Agency with immediate effect so as to prevent doing such grave misconduct in future.'
21. It is clear from language of the impugned order that the authority concerned has come to the conclusion that the petitioner has committed gross misconduct.
22. This conclusion has been arrived at without admittedly, giving an opportunity of being heard and without following the procedure laid down in Regulation 20 of the said Regulation. Apart from using the aforesaid language no other facts and circumstances have been spelt out for which such a drastic order could be passed at the threshold. On the face of this, I am of the view the authority concerned has passed not with the approach nor with mind of quasi judicial authority, not to speak of a judicial authority. It has been passed in a pre-judged mind. Therefore, the order cannot stand on the scrutiny of Article 14 of the Constitution of India. One has to be proceeded with as per the established procedure laid down in the Regulations, to say the least, it has not been followed.
23. Apart from the aforesaid as rightly submitted by Mr. Banerjee, there is no extreme circumstances nor there is any subsequent development for which this action was required to be taken nearly after one year when the authority concerned could have issued such order of suspension in contemplation of the regulatory measure at the time of issuance of the show cause notice under Section 24 of the Customs Act. Mr. Banerjee has rightly pointed out that the allegations made in the show cause notice under Section 24 of the said Act, and the basis of the impugned order are almost identically same, even word by word. Except addition of a portion of the language of the machinery of Regulation 2(20), 1 do not find any other facts and circumstances. With respect following the observation of the Division Bench of this Court, I view that while passing the impugned order under this provision the authority concerned should have explained in details as to why such immediate preventive action is required to be taken. The Department concerned allowed the petitioner to work as clearing agent for one year without any difficulty or any further misconduct on his part. At least nothing has been spelt out in the impugned order.
24. Accordingly, I hold that this order was not passed in bona fide exercise of jurisdiction. There was no warrant to pass such order after one year and to seal the fate of the petitioner finally without referring to regular provision. Accordingly, I get aside the order.
25. However, there will be no order as to costs.
26. The respondents are restrained from taking action or further action pursuant to the impugned order.
27. Let xeroxed signed copy of this order be made available to the parties only after putting in requisition for drawing up and completion of the order and also for the xeroxed certified copy thereof.