Debabrata Mookerjee, J.
1. This appeal is brought from an order of P.B. Mukharji, J., dated January 22, 1958, (See : AIR1959Cal533 ) dismissing an application under Article 226 of the Constitution and discharging a Rule Nisi requiring the respondents to show cause why a penalty of Rs. 30,000/- imposed on the appellant under Section 167 (8) of the Sea Customs Act should not be set aside or quashed.
2. The appellant is a son of one Kanaiyalal Kejriwal, a Director of the Firm of Palriwala Brothers Limited. It is said that the appellant signed several shipping documents as export superintendent, and was thus concerned in, an attempted illegal exportation of groundnut oil cakes, mis-described as sesame oil cakes by the said Palriwala Brothers.
3. Proceedings were accordingly taken against the appellant by the Customs authorities which terminated in the imposition of the personal penalty referred to above by' S.K. Srivastava, Additional Collector of Customs, on June 19, 1956.
4. The said order of imposition of penalty was challenged in a writ petition before P.B. Mukherji, J., which eventually failed. Various objections to the validity of the order were raised, all of which were negatived by the learned Judge. The objections were dealt with, partly in the order under appeal, and partly in the order made in a connected application being Matter No. 140 of the 1956 (Palriwala Brother Ltd. v. Collector of Customs, Calcutta, disposed of by the same learned Judge on December 33, 1957 (See : AIR1958Cal232 ). That order is an annexure to the paper book of the present appeal to which reference will be required to be made for disposal of this appeal.
5. Counsel for the appellant stressed in the main two points without abandoning others and invited our decision on them. They are, first, that the proceedings and the resultant order of the Additional Collector of Customs have been vitiated by reason of the violation of the principles of natural justice, in that the appellant had not had a fair hearing before the adjudication was made; and secondly, the order cannot be sustained on the ground of bias, since the person who made it had acted both as Judge and prosecutor.
6. In order to examine the validity of these two contentions, it becomes necessary to consider the facts in some detail. Reference will also require to be made to certain other cognate proceedings without which the objections on the ground of bias and denial of fair hearing will be nearly unintelligible.
7. According to the customs authorities Shew Sakti Oil Mills Ltd. and Palriwala Brothers Ltd., are associate concerns; the former carrying on the business of shippers of oil cakes, and the latter acting more or less as the managing agents of the former. The three Palriwala brothers, Gouri Sankar Palriwala, Gajanand Palriwala and Satyanarayan Palriwala have controlling interest over the Shew Sakti Oil Mills and accordingly manage the business of the firm. The appellant's father Kanhaiyalal Kejriwal is a director of the firm of Palriwala Brothers Ltd., and at all material times, the appellant acted as export superintendent of parliwal Brothers Limited.
8. In the year 1955 the export of groundnut oil cakes was permitted by the Government of India only at a very high rate of duty, and such export was strictly controlled by license. In September of that year the Customs authorities received three shipping bills numbering E457, E458 and E459 (AP) and other connected documents for export of what had been described as sesame oil cakes. Those documents were submitted by Bharat Marble Co., Bharat Mineral Industries and Gopaldas Saksoria and Co., all carrying on business in Calcutta.
9. In October, 1955, information reached the Customs authorities that the goods which were about to be exported were really groundnut oil cakes and not sesame oil cakes as declared in the shipping bills. The whole consignment was accordingly detained, and upon inspection it appeared that the goods had been misdescribed and the weight and value misdeclared. It transpired that the real shippers of the consignment were Shew Sakti Oil Mills Ltd., and the freight for effecting shipment of the consignment had been booked by them on o about August 11, 1955. Enquiries revealed that the shipping bills had been entrusted to the clearing agents by one S.N. Mondal, a shipping assistant attached to the office of Palriwala Brothers Ltd., and that one C.T. Joseph had endorsed one of the bills numbering E458 (AP), who had been concerned in exportation or importation of goods by Palriwala Brothers Ltd. The carriage of the goods from the river ghat had been arranged by one Ram Pratap Singh, an employee of Palriwala Brothers Ltd., and a sum of Rs. 15,351/12as. had been arranged to be paid through a French Bank by a director of Palriwala Brothers Ltd. The shipping bill bearing No. E458 (AP) and the relevant guarantee and G. I. R. forms had been signed by the appellant who at material time worked as export superintendent of Palriwala Brothers Ltd.
9a. Accordingly a show Cause Memo dated March 3, 1956, was issued by S.K. Srivastava, Assistant Collector of Customs and Superintendent, Preventive Service. The Memo, or letter bore No. S-37-272/55P, and it called upon the appellant to explain in writing within a week from the date of its receipt why the goods in question should not be confiscated and penal action taken against him under Section 167 (8) and (37) of the Sea Customs Act. The written explanation, if any, was required to be submitted along with original or certified copies of documents upon which reliance was proposed to be placed, and the appellant was directed to inform whether he wished to be heard personally in the matter. Similar show Cause Memos were served on other persons, including the directors of Palriwala Brothers Ltd., Gouri Sankar Palriwala, Gajanand Palriwala, the firm of Palriwala Brothers Ltd., Gopaldas Saskaria, Shew Sakti Oil Mills Ltd., Bharat Marbel Co., Bharat Mineral Industries and others. Incidentally it may be observed that Palriwala Brothers Ltd. and Shew Sakti Oil Mills Ltd. wereeventually adjudged to penalty in the sum of Rs. 9,000/- each in consequence of the proceedings, and Gouri Sankar Palriwala and Gajanand Palriwala were adjudged to penalty in the sum of Rs. 30,000/- each.
10. Close upon these proceedings another proceeding had been commenced which related to a separate consignment of 1400 bags of oil cakes misdescribed as Gingellycakes which was sought to be sent out of the country under shipping bill No. E491 (AP), dated August 27, 1955. The shippers of the consignment was a fictitious firm of the name of Madanlal Saksaria, and enquiries, according to the Customs authorities, revealed that the shipment had actually been effected by Palriwala Brothers Ltd. and Shew Sakti Oil Mills Ltd. The bill of lading had been, prepared under the orders of Shew Sakti Oil Mills Ltd. and the frieght had been booked on account of them. The G. R. forms and the invoices relating to the consignment had been signed by the appellant.
11. Consequent upon the discovrey of this attempted illegal exportation Memos were issued requiring the appellant as well as some others including G.S. Palriwala G.N. Palriwala, Shew Sakti Oil Mills Ltd., Palriwala Brothers Ltd. to show cause why they should not be adjudged to penalty. The Show Cause Memo or letter bore No. S. 37-255/55P (Pt. II).
12. For convenience of reference the proceedings covered by Show Cause Memo or Letter No. S. 37-272/55P, dated March 3, 1956, may be described as the Hainan case since the consignment was attempted to be shipped out of the country by SS. Hainan; and the consignment covered by Show Cause Memo or letter no. S. 37-255/55P (Pt. II dated February 7, 1956 may be referred to as the Alca Case, as the consignment was intended to be exported on board S.S. Alca.
13. It is to be observed that the proceedings in connection with the Alca case are still pending determination, and no orders have yet been passed with respect to them. We are accordingly left to consider the order of adjudication made on June 19, 1956, in respect of the Hainan Case.
14. Thus there are two proceedings, one concluded out of which the appeal arises and the other still pending, which though not directly relevant, acquire importance in view of the contentions raised in this appeal. Besides, there were certain connected proceedings covered by the earlier order of P.B. Mukharji, J. in Matter No. 140 of 1956 (See : AIR1958Cal232 ) by which the question of bias raised in this case was treated as having been disposed of. Indeed the learned Judge does not deal with the question of bias at all in the present case. Only he observes as follows :
'Some of the points urged in this petition are already covered by my judgment delivered on the 23rd December, 1957, in Matter No. 140 of 1956 (See : AIR1958Cal232 ) Mr. Deb for the applicant has not pressed those points on which I have already come to a decision in thatcase. He does not abandon those points but having regard to my views already expressed in that judgment, he does not press, them beforeme.'
14a. On the question of bias we are, therefore, required to refer to the learned Judge's earlier order, as well as to the order made in appeal from that decision (Appeal from Original Order No. 87 of 1958) dated June 27, 1961.
15. Before dealing with the question of denial of fair hearing or of bias, it would be convenient to notice briefly the appellant's case. In reply to the Show Cause Memo, in the Hainan case the appellant stated that he had been a law student attending the office of Pariwala Brothers Ltd. for the purpose of learning business administration. He was a young man of 19 who had been serving his apprenticeship with the firm, and in the course of his duties, he would just sign papers and documents in good faith without understanding their true implications, or even knowing their contents. In effect, he denied all knowledge of the attempt at illegal exportation of groundnut oil cakes and asserted that the allegations made against him as being a person, concerned in the act of illegal exportation of oil cakes out of the country were baseless.
16. The complaint about denial of a fair hearing is founded on the correspondence that passed between, the appellants solicitors and the Customs authorities. It is only in the perspective of this complaint that the correspondence has to be reviewed since we were not concerned with the merits of the appellant's defence; and this Court sitting in appeal would have declined to survey the correspondence if the learned Trial Judge had, upon a consideration of the whole of it, arrived at a conclusion of fact that there was no denial of fair hearing. It is true that the learned Judge found that there was no denial of natural justice in this regard; but the finding appears to have been based on a part only of the correspondence and not the whole of it. He held that the plea of inspection of documents was an after-thought. If, however, we take a different view of the correspondence, we do so, not as a matter depending on the credibility of the evidence, but as a matter depending upon the proper inference to be drawn from document which are beyond dispute.
17. It is to be recalled that there were two different proceedings against the appellant concurrently or simultaneously gone on with up to a stage. He was entitled to be heard on both and separately for each, even, if the circumstances requiring explanation were very similar to both. The respondents' case is that the appellant deliberately mixed up the two proceedings with a view to create confusion where there was none. We have to examine this criticism in the light of the correspondence that passed between the parties.
18. We have indicated that in the Hainan case, the Show Cause Memo or letter, dated March 3, 1956, bore No. S. 37-272/55P. TheAlca case was commenced by Show Cause Memo, or letter, dated February 7, 1956, bearing No. S. 37-255/55P (Pt. II). On March 6 and 17, 1956, the appellant submitted his explanations through his solicitors to the two Show Cause Memos. The explanation, dated March 6, 1956, had reference to the Alca case, and the explanation, dated March 17, 1956, referred to the Hainan Case. The explanation in both was identical. So far the Show Cause Memos as well as the explanations were treated separately; but on April 13, 1956, the respondent S.K. Srivastava who was presumably in charge of investigation of these proceedings, addressed a letter to Messrs. Khaitan and Co., the appellant's Solicitor, intimating that the Customs had further information that the appellant had not only signed the shipping bills in question, but also had signed' several other documents, including letters, to the employees of Palriwala Brothers Ltd. and associate firms and had dealt with certain account books. It was said that whereas the appellant had signed other papers and documents as 'B. K. Kejriwala' or 'Bal Kissen Kejriwal', he had curiously enough signed the documents leading to the issue of the two Show Cause Memos. as 'Bal Kissen' only. This letter bearing No. S. 37-272/55P obviously related to the Hainan case, but the contents clearly embraced the other proceeding as well relating to the Alca case. Obviously the object of this letter was to require further explanation from the appellant in regard, to both.
19. On April 28, 1956, the appellant's solicitors wrote to say that what their client had stated by way of explanation was absolutely true and that it was not possible for him at that distance of time to remember as to how and on what papers he had subscribed his signature. It was asserted that the appellant was an innocent person and he might have just subscribed the documents as and when produced before him during his apprenticeship.
20. On May 17, 1956, the Customs authorities changed over to the Alca case. S.K. Srivastava wrote a letter bearing No. S- 37-255/55P (Pt. II) whereby the appellant was informed that the Additional Collector of Customs had been pleased to grant him an interview on May 22, 1956, at 3-30 p.m., when if he so wished; he might make his final submissions in writing. It was added that if he failed to turn up for the interview, the case would be decided against him without further reference to him. Obviously this had reference to the Alca case.
21. On May 21, 1956, the appellant's solicitors wrote to S.K. Srivastava that since their client, the present appellant, had been away from Calcutta and gone to Benaras in connection with a marriage ceremony, the date of the proposed interview might be fixed towards the end of June.
22. On June 2, 1956, S.K. Srivastava wrote to Khaitan and Co. by letter bearing no. S. 37-255/55P (Pt. II) telling them that it was not possible to wait until the end of June for finalising the adjudication proceedings, and accordingly fixed June 18, 1956, as the date when the appellant might interview the Additional Collector of Customs at 3-30 p.m. The closing paragraph of the letter is important and it reads:
'Please note that if your client fails to turn up for interview on the appointed date and time, the case will be decided on the basis of the evidence on record.'
AS we have indicated the letter bore reference to the Alca case, and there can be no manner of doubt that when S.K. Srivastava indicated that in the event of the appellant failing to turn up for the interview on the appointed date, the case would be decided on the available materials, he clearly meant to say that it was the Alca case which was meant to be so decides. On June 18, 1956, the interview was held at which the appellant's solicitors were present and in that interview discussions took place between them and the Customs authorities. The context would therefore clearly repel the inference that the interview had anything to do with the Hainan case. The shift in position that the interview actually related to the Hainan case is wholly impermissible.
23. On June 25, 1956, the two proceedings appear again to have been mixed up by the Customs authorities. By a letter of the same date, bearing No. S. 37-255/55P (Pt. II), S.K. Srivastava wrote to the appellant's solicitors saying that when their client, meaning the appellant, appeared in connection with 'another matter' his attention had been drawn to certain facts. The facts recited were, (a) that an employee of M/S Palriwala Brothers. Ltd. by name S.N. Mandal had been kept concealed in the Asoka Ice and Cold Storage Co. Ltd. at Benaras, a firm belonging to the Kejriwala family; (b) that an attempt had been made by the appellant's father to conceal facts by pretending that he was not conversant with his son's, i.e. appellant's, signature; and (c) that the appellant's father had an interest in the firm of M/S Palriwala Brothers Ltd. not only as a director, but also in various other ways,--a circumstance which did not fit in with the plea of innocence taken up by the appellant. It was observed that these constituted a 'drawback' in the appellant's plea of innocence and they 'affected the present case as well''. The letter proceeded to say that the appellant might however, be granted an interview on July 3, 1956, at 3 p.m., if one such was desired, and it was indicated that the circumstances just referred to were considered by the Customs authorities as supplementary facts requiring further explanation. It was also repeated that the appellant had been found to have some thing to do with the account books of Palriwala Brothers Ltd., and although he had subscribed on most of other documents as 'B.K. Kejriwal'' or 'Bal Kissen Kejriwal', he signed the documents leading to the issue of the Show Cause Memos as 'Bal Kissen' only.
24. Taking the letter of June 25, 1956, as it is, it seems inexplicable that while in the Hainan case the earlier explanation had been, considered sufficient, opportunity for written explanation was considered necessary, and even an interview was offered to be granted in the Alca case although the incriminating facts were said to be nearly the same. The first letter of the appellant's solicitors after the interview of June 18, 1956, was dated July 2, 1956, in which besides the assertion of the appellant's innocence, certain facts were stated which require to be noticed. It was stated that in view of the attitude of the Customs authorities it had become necessary that their client, meaning the appellant,
'should know a little more about this matter and, therefore, before a final explanation can be given on behalf of our client, we would request you to kindly allow us inspection of all the documents that you want to rely in this case. We shall, therefore, request you to kindly adjourn the personal interview until such inspection is allowed and given to us. We hope that in view of our requisition the interview fixed by you for tomorrow should be adjourned until such inspection is allowed. We shall, however, send one of our representatives tomorrow who will formally ask for time on this account.'
It is thus clear that when the first opportunity presented itself after the interview of June 18, 1956, request was made to the Customs authorities for inspection of documents and for postponing the proposed interview.
25. It is important to recall in this connection that this letter written by the appellant's solicitors was dated July 2, 1957. Although the order of adjudication, in the present case bore date June 19, 1956, it was, on the Customs authorities own admission, not dispatched Until July 25, 1956, and according to the appellant, it was not received until July 30, 1956. Whatever the actual date of receipt of the order of adjudication may be, the real question is at what stage, if at all did the appellant ask for inspection of documents. There is nothing on the record to indicate that the letter of July 2, 1956, to which we have just referred was written after having known that an order of adjudication had already been made on June 19, 1956, The learned Trial Judge seems to have thought that the 'massive array of facts and correspondence' established that the plea of want of opportunity to examine documents is an after thought. He has held in this connection that the letter of July 2, 1956, requesting inspection of documents is of no importance since the fact remains that the order of adjudication, had, in fact, been made. The learned Judge added that it did not matter whether it was known to the appellant on that date that an order of adjudication had already been made, it is not easy to appreciate this observation in view of the total absence of any circumstance from which an inference might reasonably be drawn that the letter of July 2, 1956, was inspired by the idea of creating a ground of complaint that the appellant had been denied a fair hearing.
26. It is to be observed that the interview proposed to be given on July 3, 1956, was never held and it appears from the letter, dated July 6, 1956, written by the appellant's solicitors that the person, to be interviewed in the CustomsOffice was not to be found on the appointed date. There is on the record another letter, dated July 26, 1956, written by the appellant's solicitors. The request for inspection was repeated in view of the fact that new allegations had been made at the interview on June 18, 1956, and it was stated that without inspection of the relevant documents, it was quite impossible to give further explanation. It was regretted that the appellant's request for inspection had gone unheeded, and the necessity for inspection of relevant documents was described as imperative. It was in this letter that bias was definitely alleged against S.K. Srivastava on the ground that he had been responsible for initiating criminal proceedings against the appellant, that he had Collected materials behind his back and had taken active part in the investigation which led to the criminal prosecution. The letter concludes with the observation that S.K. Srivastava had disqualified himself and was not competent to adjudicate in the matter.
27. It is the admitted case of the Customs authorities that although the order of adjudication had been made on June 19, 1956 it was dispatched on July 25, 1956. According to the appellant it was not received until July 30, 1956. Even if there is a dispute as to the actual date of receipt of the order of adjudication by the appellant, there can be no doubt that it became the duty of S.K. Srivastava to at once challenge the statements made in the letters of the appellant's solicitors, bearing date July 2, 1956, and July 26, 1956. It is not that the Customs authorities never replied. We find on August 6, 1956, S.K Srivastava writing again. By letter no. S. 37-255/55P (Pt. II) which obviously connects it with the Alca case, the correspondence is resumed but in this letter nothing is said about the inspection asked for, and there is no protest, no denial of the allegations made in the letter of the appellant's solicitors, dated July 2 and July 26, 1956. S.K. Srivastaya's letter, dated August 6, 1956, was cryptic to a degree. It merely said,
'You are requested to direct your client Shri Balkissen Kejriwal to take inspection of the documents utilised against him from the office of the Rummaging Inspector (Intelligence), Customs House at 15/1, Strand Road, Calcutta at 11 a.m. on 10th August, 1956.'
It is by no means clear what exactly was meant to be said by this letter. If the documents had already been utilised against the appellant there would be no sense whatever in offering inspection after the adjudication, if the documents were proposed to be utilised in the other case, the language employed would only help to confuse rather than clear the attitude taken up by the Customs authorities. This letter is ambiguous to a degree, and we do not think it would be right to permit the Customs authorities to rely upon it in aid of the contention that the inspection offered by this letter referred to the Alca case which still remained to be adjudicated.
28. On August 9, 1956, the appellant's solicitors expressed their bewilderment for having been served with a copy of the order of adjudication made on June 19, 1956. Surprise was expressed at the conduct of the Customs authorities in offering inspection after adjudication. There was no reply to this letter when the appellant at last moved this Court under Article 226 of the Constitution and obtained a Rule Nisi on August 25, 1956.
29. We have referred to the correspondence in some detail since we prefer to rely upon it, rather than upon the interested statements of the parties to the proceeding. It is true that in the affidavit in opposition affirmed by Suvarana Kumar Srivastava it was stated that no inspection had been asked for in the present case, and consequently there can be no complaint of denial of fair hearing. There is on the other hand, the statement, of the appellant that he was denied such inspection with the result that he was deprived of a proper opportunity to make adequate representation against the penalty proposed to be imposed upon him. It would be worse than useless to attempt to choose between these contradictory versions; it would, in our opinion, be safer to rely upon contemporaneous or near contemporaneous documents for the purpose of finding whether the appellant had, in fact, and in substance, been denied a fair hearing. Indeed, it would not have been necessary for this Court to review the correspondence at such length if the learned Trial Judge had taken the pains of taking a complete survey of that correspondence. If upon taking into account all the letters that passed between the parties the learned Judge had arrived at the conclusion that the appellant had had a fair hearing, this Court would have no occasion to review the lengthy correspondence once again,
30. On behalf of the respondents it was sought to be argued that it was not necessary for the Customs authorities to give inspection in every case. It is said that the requirements of the Law merely is that the person proceeded against should be given an opportunity of explaining the facts which have been held up in evidence against him, and the present proceedings being not a criminal prosecution, it would be unfair to an administrative authority to require them to give at every step an opportunity to controvert every fact. It was said that until after the adjudication, there was no request for inspection of document. We have dealt with this aspect of the matter, and having regard to the view we take of the correspondence as a whole, we cannot possibly accept the contention that there was no confusion which might have misled the appellant. The two proceedings were up to a stage concurrently proceeded with; we have seen that although initially they were kept separate, they got mixed up in course of time, and it would not be an unreasonable inference in the circumstances of this case that the appellant had been misled to think that the interview which he actually had was in respect of one case, rather than another. In any event, if the Customs authorities thought that the interview held on June 18, 1956, related to the present case, there was nothing to prevent them from saying so directly on receipt of a complaint from the appellant's solicitors that their client had not been fairly dealt with and had been deprived of the opportunity of inspecting the documents. That there was need for inspection is clear from the Customs authorities' own attitude. If there was such need, and if the materials in the two proceedings were the same, or nearly the same, it is indeed difficult to see what induced the Customs authorities to offer inspection in one case and to withhold it in the other. Even if it be said that there was no withholding of inspection, it must be held that the Customs authorities thought that despite the materials being the same or nearly the same there was necessity at feast in one case for further interview following on an inspection of documents. This obviously was their suggestion with regard to the Alca case. We have not been able to see how the two cases could have been in this way distinguished.
31. The circumstances to which we have referred relate to questions of fact; but they acquire importance and significance in view of the complaint made that the two proceedings were mixed up which led to confusion with the consequence that the appellant was not given adequate opportunity to say what he had to say in the present case upon inspection of the materials held up in evidence against him.
32. Our attention has been drawn on behalf of the Respondents to a decision of the Supreme Court in the case of Fedco (P) Ltd. v. S. N. Bilgrami, : 2SCR408 , where it has been held that a fair hearing has two elements. The first is that an Opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters; are justiciable. There can be no invariable standard of reasonableness in such matters, except that the Court's conscience must be satisfied that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent, or, even if they exist, they do not justify the proposed action.
33. We have studied the decision, but have found nothing in it which might support the Customs authorities contention that in, this case there was fair opportunity given to the appellant to make adequate representation against the proposed penalty. On, the other hand, we find this as an authority for the proposition that fair hearing has two elements, both of which are justiciable. Whether a person has had a fair hearing can, be gone into by the Court; and the Court's conscience must be satisfied that an Administrative Tribunal charged with the duty of deciding a dispute has conformed to fundamental principles of natural justice. The view we have taken of the correspondence seems to he strengthened by the observations of the Supreme Court in the case and the Court's conscience is not satisfied that despite the mix-up and the muddle the appellant has had a fair hearing.
34. In this connection one may usefully recall the observations of Maugham, L.J. in the case of Errington v. Minister of Health, (1935) 1 KB 249. After haying discussed the question that fell for decision these observations were made by the noble Lord;
'The only question that remains is whether the Court should come to the conclusion that the interests of the applicants have been substantially prejudiced by what has been done, because the quashing of the Order is, of course, a matter of discretion of the Court I do not think it has been proved that the statements which were made to the Ministry in fact affected the decision of the Minister, or of his officials, and I certainly have no reason to doubt that the officials were acting in what they thought to be the public interest. On the other hand, it seems to me a matter of the highest possible importance that where a quasi-judicial function, is being exercised, under such circumstances as it had to be exercised here with the result of depriving people of their property, especially if it is done without compensation, the persons concerned should be satisfied that nothing unfair has been done in the matter, and that ex parte statements have not been heard before the decision has been given without any chance for the persons: concerned to refute those statements. That seems to me a matter of the greatest public importance, and if I am right in the view that I have expressed as to the functions of the Minister being of a quasi-judicial character, I think it follows that the. Special circumstances of this case, as I understand them to be, the Court has no option, but to quash the Order, as my brother suggested.
It is clear that even though, the learned Justice was not satisfied that any injustice had in fact been done, nevertheless he was of opinion that Certiorari should go in, the public interest.
35. Therefore, even if we felt that no real injustice, has resulted, we would still be constrained to hold that the proceedings did not exclude the possibility of denial of opportunity of fair hearing. The impugned order must, therefore, be held bad on his ground.
36. We have next to deal with the question of bias. It appears that in the middle of February, 1956, S.K. Srivastava lodged an Information with the Special Police Establishment against the appellant and some others including Parliwala Bros. Ltd. Investigation was commenced on that information in course of which one of the Parliwala Brothers was arrested and the appellant surrendered before the Chief presidency Magistrate. In consequence of the investigation which followed the appellant was sent up for trial along with a number of other persons on charges under sections 120-B/420, 468 and 471 of the Indian Penal Code and Section 5 of the Import and Export Control Act. 1947. The charges refer to matters which are directly connected with the circumstances which led to the issue of the Show Cause Memos. As a result of the trial held, the appellant was convicted and sentenced by the Magistrate.
37. It has been alleged on behalf of the appellant that S.K. Srivastava had himself as well as through his agents taken part in the investigation with the consequence that he came to be biased and prejudiced against him. The materials, it is said, obtained in the course of search and the facts, transpiring in the course of investigation prejudiced him and completely disqualified him to adjudicate in the present proceedings.
38. On behalf of the respondents it has been asserted that besides merely passing on information to the police officer, S.K. Srivastava did nothing in the matter; he denied that he had taken any part in the investigation; there was thus nothing to disqualify him to adjudge the proceedings.
39. It is to be observed that M.A. Rangaswami was Additional Collector of Customs till the forenoon of June 18, 1956. S.K. Srivastava took over as Additional Collector of Customs in the course of the day, and within a few hours of his taking over, he held the interview, and within, a day of his assumption of office as Additional Collector of Customs, he made the impugned order. The sequence of events assumes significance only if we think on the materials on the record that S.K. Srivastava had already prejudged the issue in consequence of his having taken part in the investigation which must necessarily have preceded the present proceedings. It would also be necessary to see whether he had any thing to do with the other investigation which resulted in the institution of criminal proceedings ending with the appellants conviction. It must, however, be said that the mere preferring of complaint or lodging of information with the police cannot be a circumstance to disqualify. But on the materials on the record, it seems to us that S.K. Srivastava was not merely responsible for passing on an information to the police, but foe took definite part in the investigation which resulted not only in the adjudication proceedings, but also in the criminal trial and conviction.
40. The record of the criminal case was produced before us, and on reference to it, it was found that the appellant was one of the persons proceeded against and convicted and sentenced. There is still an appeal pending in this Court against the conviction. It is true that the order of conviction was made long after the order of adjudication. S. K. Srivastava gave, evidence at the criminal trial in which the appellant figured as one of the accused persons. At the shearing before us an affidavit was filed by the appellant's father Kanhaiyalal Kejriwal in which it was prayed that we might take note of the evidence given by S.K. Srivastava in the criminal trial. Mr. Kar appearing on behalf of the Customs authorities did not object to the record of the criminal trial being produced and taken into account by us. But the learned Counsel attempted to maintain that even though we might not be precluded from taking into account the fact that the appellant has been convicted and sentenced, we ought not to base our decision upon the evidence which S.K. Srivastava gave at the trial. It is indeed not very easy to see how that can be done. Either we should refrain from looking at the record of the case; or if we do so we are bound to take note of its contents. Turning for a moment to the evidence which S.K. Srivastava gave, it is seen that he took a very large part in the investigation leading to the trial. The thing to note in the evidence of this witness is that he refers to a point of time prior to the date of adjudication. He gave evidence which shows that he had much to do with the investigation culminating in the criminal proceedings prior to the date of adjudication. He said that he had directed the taking of samples from the consignment in question which was illegally attempted to be shipped out of the country. He directed all necessary documents to be collected, ordered the samples to be sent for examination and report; he directed seizure of the goods about to be shipped, and after a preliminary enquiry, made a complaint to the police. Meanwhile enquiry in departmental proceedings continued where after he issued the Show Cause Memos. He said in cross-examination, that he had obtained search warrant from the Chief presidency Magistrate. He seized about 300 files from the office of Parliwala Bros. Ltd., and had some thing to do with the applications made to this Court in proceedings connected with the seizure of documents and eventual prosecution. He stated further that he took into account the results of the investigation so far as they were relevant for the purpose of adjudication. If all this is taken to account, we cannot have any doubt that S.K. Srivastava took a large part in the investigation for collection of materials upon which the proceedings in prosecution on charges of criminal offences as well as the adjudication proceedings were founded. That he gave evidence subsequent to the order of adjudication there is no doubt; but that is, in our view, wholly immaterial. The point to note is what exactly S. K. Srivastava had actually done before he made the order of adjudication. The record makes it plain that he did take a large part in the investigation which, we think, had the effect of disqualifying him.
41. We consider that the administrative enquiry resulting in adjudication in this case cannot properly be divorced from the larger context of a number of other enquiries and proceedings in which Palriwala Bros. Ltd. and the associate firms had been concerned. The appellant was a limb of an organisation which had rightly or wrongly come under fire. He was described as export superintendent of Palriwala Bros. Ltd. He seems to have stood in the full blast of S.K. Srivastava's suspicion and distrust, natural to one who had so much to do in so many ways. Srivastava dealt with quite a number of connected proceedings, In our view, it is idle to contend that S.K. Srivastava's part in the investigation lay within a small compass so as not to disqualify him.
42. Even if we give effect to the respondents' contention that our decision in this appeal ought not to be based on the evidence S.K. Srivastava gave in the criminal case against the appellant, there would still be left sufficient residue to incline us to the view that S.K. Srivastava acted both as Judge and Prosecutor.
43. The learned Trial Judge did not deal in this case with the question of bias at all. For his views on the subject, reference has to be made to the decision in Matter No. 140 of 1956 (See : AIR1958Cal232 ) which forms an appendix to the paper book. This order was the subject of appeal, being Appeal from Original Order no. 87 of 1958 (Cal) Palriwala Brothers Ltd. v. Collector of Customs, Calcutta). The appeal was disposed of by this Bench. My Lord the Chief Justice in delivering the judgment, to which I had the honour of being a party, held after an elaborate citation of authoritative judicial pronouncements that the views expressed from time to time by the Judges in England On the question of bias were to be accepted in preference to the views expressed by the American Courts in this regard. The view taken is that even in administrative hearing an accuser cannot be permitted to act as judge and the purity of such hearing can only be maintained by excluding participation as judges of all who might reasonably be suspected of being biassed.
44. P.B. Mukharji, J., referred to the decision of Black, J., reported in Federal Trade Commission v. Cement Institute, (1948) 333 US 683 at pp. 700-703 : 92 Law Ed 1010 at pp. 1034-35. The question there was whether a Commission had disqualified itself in consequence of certain views expressed on the matter for decision by some of the members in another capacity. It was held that if the Commission held certain views, it did not mean that the 'minds of its members were irrevocably closed' on the subject of the respondent's case. It was, therefore, held that the decision of that body would not amount to violation of the procedural due process. The learned Judge thought that the view expressed by Black, J., applied to the case where a person having had investigated a matter came thereafter to judge the issues in an administrative, capacity. Reliance was placed upon what is called the Doctrine of Necessity. We are afraid there is no scope for invoking such a doctrine in interpreting the provisions of the Sea Customs Act. It may be that in given circumstances, a body carrying on investigation may be the only body competent to adjudicate. In such cases the Docrine of Necessity may apply, but, as is well known, under the Sea Customs Act, there are several persons competent to adjudicate. If that is so, it cannot be said that S.K. Srivastava was indispensable in the sense, that the adjudication could not have been done by some other officer. Indeed, it was on June 18, 1956, that S.K. Srivastava assumed charge of office as Additional Collector of Customs, and it was on the following day that the adjudication was made. In view of what S.K. Srivastava had done by way of investigation, such hurried disposal might well seem to the appellant to smack of an unsavoury frame of mind pointing to a desire to dispose of a case with precipitancy andhaste suggesting of bias. Justice must not only be done but must be seen to be done.
45. It would not be necessary in this case to review once again the long line of cases which have been cited in the judgment in Appeal from Original Order no. 87 of 1958 for the purpose of holding that it is never right that an accuser should at any time act as a judge. This has been the view entertained in a number of English decisions, and the Courts in this country have accepted the same view. The Supreme Court in the case of State of Uttar Pradesh v. Mahammad Noon, 1958 SCA 73 : (AIR 1958 SC 86) clearly held that even in departmental enquiries, the enquiring officer cannot be a witness and judge. Even if actual bias is not established on the facts of this case, circumstances clearly indicate that there was reasonable likelihood of bias on the part of the adjudicating officer. It was held in Appeal from Original Order No. 87 of 1958 (Cal) that it is not necessary that there should be positive evidence that an administrative officer called upon to adjudicate should be proved to have actual bias. It would be enough if circumstances sufficiently pointed to the likelihood of bias. There can be no doubt there was such likelihood in the present case.
46. We think on a consideration of the whole of the circumstances of this case that the appellant may justly complain that there was likelihood of bias on the part of the officer who made the order of adjudication against him. We must, therefore, hold that the order under appeal is bad on this ground as well.
47. In the result, this appeal is allowed, the judgment and order under appeal are set aside, and we direct a Writ of Certiorari to be issued quashing the order of S.K. Srivastava. Additional Collector of Customs, Calcutta, dated June 19, 1956.
48. Nothing that we have said in this judgment will, however, prevent the Customs authorities to proceed against the appellant in accordance with law.
49. Parties will bear their own costs throughout here and below. Certified for two Counsel.
50. Bose, C.J. : I agree.