Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chennai: Coram of P. Dinesha (Member)  and P. Venkata Subba Rao (Member) allowed the application filed by the appellant to praying the Tribunal to recall and rehear the final order passed by the same Bench on 22-02-2018 on the ground that the said order suffered from rectifiable mistakes. The Bench had passed an order whereby they held that the appellant had rendered services other than legal services, and the same was under dispute.

The main contentions put forth by the appellant was that he had furnished all the documents in support of his legal services rendered to Essel Mining Co. Ltd., Gujarat Sidhee Cement Ltd., and to Express Publication of (Madurai) Ltd., but the same was not considered and hence, non-consideration must render the impugned final order a non-speaking order. With regard to the issue of revenue neutrality, the appellant had relied on a decision of the jurisdictional High Court, which was also not referred to nor considered and such non-consideration must again render the impugned final order a non-speaking order. Therefore, the non-consideration of the above orders, as well as documents, must result in the impugned final order being erroneous and amenable to rectification.

On the other hand, the respondent opposed the above contentions arguing that the Bench had passed the impugned final order after hearing both sides and after perusing the appeal records. Since there was no error on record, no intervention was required. Also, interfering with the impugned final order would amount to review, which is not permissible under the law.

The Tribunal pointed out that there was no mention nor discussion as to the applicability of various decisions relied on by the appellant in the impugned final order. There was no dispute that non-consideration of a judgment of the jurisdictional High Court or Supreme Court in itself amounts to a mistake/error on the face of the very order and the same must be rectified. The same was held in V. Guard Industries Ltd. v. Commercial Tax Officer, reported in 2003 (158) E.L.T.806 (Mad.). As there was no discussion on all the various documents relied on by the applicant and furnished in the paper compilation, the Tribunal held that non-consideration of the same amounts to passing a non-speaking order. The impugned final order needed to be recalled and reheard. They directed the Registry to relist the appeal for fresh hearing.[S. Gurumurthy v. Commr. of Central Excise, 2019 SCC OnLine CESTAT 255, decided on 09-09-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Ramalingam Sudhakar, J., allowed the appeal against an order of the Deputy Commissioner on the ground that the order was a non-speaking order and was passed without application of mind to the rival claims.

The facts of the case were that the petitioner in SWP No.1118/2015 (Petition 1) was the selected candidate in the newly created Anganwari Centre. She was aggrieved by the order of the Deputy Commissioner stating that the petitioner in SWP No.1418/2015 (Petition 2) seemed to be right claimant for the post of Anganwari Worker instead of the petitioner in Petition 1. Thus selection of the said candidate was quashed and it was directed to initiate fresh selection process action report. Petitioner 2 was aggrieved by the direction issued by the Deputy Commissioner to initiate fresh selection process after setting aside the selection of Petitioner 1. According to her, if the selection is set aside, the selection process would be continued with the next available candidate and that was her grievance. The grievance of Petitioner 1, was that she was not heard and no opportunity was given to her to participate in the process of hearing of the appeal filed by Petitioner 2 and the impugned order did not give any reason as to the claim of the Petitioner 1 and in contrast with that of the claim of Petitioner 2 therefore, it was a non-speaking order and without application of mind purely based on a report of the Child Development Project Officer, ICDS Project.

The Court accepted the plea of Petitioner 1 and ordered that the impugned order should be set aside and the appeal should be considered since the Deputy Commissioner had erred in passing a non-speaking order, without application of mind to the rival claims. [Nisha Rana v. State, 2018 SCC OnLine J&K 1049, Order dated 26-02-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order issued against a delinquent employee ruling that the disciplinary authority had not assigned reasons for the said order and had also not given an opportunity of hearing to the employee.

The instant petition was filed having been aggrieved by an office order inflicting upon him major punishment of stoppage of two annual increments with cumulative effect, censure, non-payment of salary for the period of suspension and punishment that he shall not hold the post of Headmaster-cum-Drawing & Disbursing Officer in future.

The Court noted that the petitioner had been proceeded against on the basis of charges submitted by the District Superintendent of Education, Munger. After enquiry report, second show cause notice was issued to him in the form of impugned office order. The said second show cause notice which recorded a finding different from that of the enquiry officer did not accord reasons for order and no opportunity of hearing was provided to the petitioner.

The Court placed reliance on dictum of  Apex Court in Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 and observed that while the finding of enquiry officer is not binding on the disciplinary authority, but while differing with the finding disciplinary authority is required to assign reasons and provide opportunity of hearing so that the delinquent may have an opportunity to persuade it in respect of favourable finding of the enquiry officer. Further, Rule 18 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 made it obligatory for the disciplinary authority to follow the principles laid down in the Kunj Behari case.

In view of the above, the petition was allowed and impugned office order was quashed for being issued without following principles of natural justice and for being a non-speaking order.[Yogendra Paswan v. State of Bihar,2018 SCC OnLine Pat 2108, decided on 22-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity, New Delhi: A Division bench comprising of N.K. Patil, J. and S.D. Dubey (Technical Member) allowed an appeal, filed against Central Electricity Regulatory Commission, holding that the order of Commission was a non-speaking order.

Appellant, a joint venture company between National Thermal Power Corporation Ltd. and Uttar Pradesh Rajya Vidyut Utpadan Nigam Ltd., was working on a project for development of a 1320 MW coal-based generating station at Meja in Uttar Pradesh. Respondent is the regulator which determines generation and transmission tariff for central government-owned or controlled companies including the appellant.

In a petition, the respondent passed an order directing appellant to pay Interest during Construction (IDC) and Incidental Expenditure during Construction (IEDC) for the period of delay in commissioning of Meja-Allahabad line and also for payment of transmission tariff. Aggrieved by the said order, the present appeal was preferred by the appellant under Section 111 of the Electricity Act, 2013. The sole point of challenge in the appeal was that the order passed by respondent is a non-speaking order bereft of any analysis or reasons, and while passing the impugned order, the respondent Commission had failed to consider the relevant material placed on record by the appellant.

After perusing the order passed by the respondent Commission, the Hon’ble Appellate Tribunal noted that there was no discussion, reasoning or finding therein in relation to the case of appellant. Relying on the judgment of Apex Court in Commissioner of Police, Bombay v Gordhandas Bhanji, 1952 SCR 135, the Tribunal observed that it is a settled principle of law that an order passed by a statutory body should speak for itself, and cannot be supplemented later with fresh reasons. Public orders, publicly made, in the exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order. Since such an order has a public effect and also affects the acts and conduct of those to whom it is addressed, it must be construed objectively with reference to the language used in the order itself.

On the aforesaid reasoning, finding that there was no reasoning or discussion in the respondent’s order, the Tribunal held that the said order being a non-speaking order was liable to be set aside. [Meja Urja Nigam Private Limited v. Central Electricity Regulatory Commission,2018 SCC OnLine APTEL 103, decided on 28-09-2018]

 

Case BriefsHigh Courts

Allahabad High Court: A writ petition filed under Article 226 of the Constitution challenging the order of Divisional Head Manager, UPSRTC, whereby petitioner’s appeal against the order of his removal from service was dismissed; was decided by a Single Judge Bench comprising of Manoj Kumar Gupta, J., wherein the said impugned order was quashed holding it to be a non-speaking order.

The petitioner was holding the post of senior clerk in UPSRTC and was subjected to disciplinary proceedings on the charge that he misbehaved with the station incharge of a certain depot. The petitioner denied the incident. Petitioner’s case was that respondent 5-complainant was an interested witness, and although it was alleged that the said incident took place in front of entire staff, still no independent witness was examined. Petitioner submitted that the order of removal was passed in a mechanical manner observing that the petitioner failed to prove that the charges leveled against him were not correct; however the burden to prove the charges was on the respondents. It was further submitted that the order dismissing petitioner’s appeal was also passed in a mechanical manner without adverting to the specific grounds raised by the petitioner in his appeal.

In order to settle the controversy, the High Court perused the record and found that the order of appellate authority did not even refer to the grounds on which the petitioner challenged the order of his removal from service. The reason passed by the appellate authority was a non-speaking order which failed to disclose reasons for arriving at the conclusion that contentions raised by the petitioner were without any substance. The appeal filed by the petitioner was a statutory appeal under UPSRTC Employees Service Regulations, 1984 and while considering such an appeal it was incumbent upon the appellate authority to have addressed itself to the grounds raised by the petitioner in the appeal. The Court observed that it is well settled that reasons are the heart and soul of any order and in the absence thereof, such order becomes vulnerable.

Consequently, the petition was allowed and the order of the appellate authority was set aside sending the matter back for fresh consideration. [Shamsuddin v. State of U.P., 2018 SCC OnLine All 211, order dated 14.03.2018]