Administrative Law

Class Note 5

Shuvro Prosun Sarker

B.A. LL.B (Calcutta), LL.M (NUJS), PhD Candidate (NUJS)
Assistant Professor
School of Law, KIIT University

Disclaimer: This class note is skeletal in nature and comprising only

points of discussions. So this note should not be construed as
sample answers or model answers for the purpose of any
examination.

Shuvro Prosun Sarker, 2014.

Union Of India vs. Tarachand Gupta & Bros

AIR 1971 SC 1558

BENCH: J.M. Shelat, C. A. Vaidyialingam

Judgment Delivered by: J M Shelat, J.

Fact:
1. This appeal, by certificate, arises from the
respondent's suit in respect of fines and penalties
recovered from them by the Collector of Customs,
Bombay for the alleged contravention of S. 3 of the
Imports and Exports (Control) Act, 1947 and. s.
167(8) of the Sea Customs Act, 1878.

2. The respondents held an import licence dated July

10, 1956 permitting them to import parts and
accessories of motor cycles and scooters as per
appendix XXVI of the Import Policy Book for JulyDecember 1956.

3. Under the said licence, the respondents, imported

certain goods which arrived in two consignments,
each containing 17 cases, by two different ships.
4. According to the respondents, the goods so
imported by them were motor cycle parts which
their licence authorised them to import.
5. The Customs authorities held on the examination of
the goods, that they constituted 51 sets of "Rixe
Mopeds complete in a knocked down condition".
6. The Deputy Collector of Customs thereupon held an
enquiry in pursuance of two show cause notices
issued by him.

7. The result of the enquiry was an order under

which the Deputy Collector directed confiscation
of the said goods with an option to the
respondents to pay certain sums in lieu of
confiscation and also personal penalties.
8. That order was passed on the basis that the
goods imported were not parts and accessories
of motor cycles and scooters permissible under
the law.
9. But they were motor cycles/ scooters in
completely knocked down condition prohibited
for import under the licencing terms of the
respondent.

10. On examination of the goods and scrutiny of the

documents it was ascertained that M/s. Tarachand
Gupta & Bros. had imported 51 sets of "Rixe"
Mopeds complete in a knocked down condition. The
total number of consignments were sufficient to give
exactly 51 sets complete mopeds.
11. The packing was also such as to show that those
were nothing but "Mopeds" in a disassembled
condition, since each of the cases contains
components relating to three mopeds.
12. Moreover, it was found that major components
such as the frames, completely fitted with electrical
wires and control cables and grips had been
imported in equal numbers.

13. All these went to show that the goods were not
imported as spare parts but as complete vehicles in
a knocked down condition. The goods were
therefore, considered to be correctly different for
which the licence was issued.
14. The Deputy Collector rejected the respondents'
contention that the two consignments which
arrived in two different ships at different dates
should be viewed separately, that the machines
were incomplete as they were without tyres, tubes
and saddles and therefore they could not be said to
constitute motor cycles in knocked down condition.

15. DC held that though the goods were not in

completely knocked down condition it made
no difference as the tyres, tubes and saddles
were easily obtainable in India. Their absence
did not prevent the machines being otherwise
complete.
16. DC also found that there was a trade
practice under which traders were supplying
motor cycles without tyres, tubes and saddles
unless the purchaser specially asked for these
parts. According to him, the goods could not
be regarded as spare parts but were 'Mopeds
in disassembled condition".

In the HC

Single Bench Decision:

1. HC held that however erroneous the Collector's
decision might be since it was within his
jurisdiction to decide whether the goods fell
under one entry or the other, a court had no
jurisdiction to grant relief.
2. Finally, the Single Bench opined that as the
provision is under limitation, the order of the
tribunal is a nullity and cannot be set asided.

Division Bench:

1. An order of a statutory tribunal which the

statute makes final, subject to an appeal, can
be set aside in a suit before a court on two
grounds onlya. where the provisions of the Act have not
been complied with,
b. or where the tribunal has failed to act in
conformity with the fundamental rules of
judicial procedure.

2. The jurisdiction of the Collector was to ascertain

whether the goods were properly imported
under the licence relating to goods, i.e.,a. whether they were spare parts and accessories,
b. and not to go further and find out whether
they would, when put together, constitute auto
cycles in completely knocked down condition.

4. In the Division Bench it was held that the

Collector's jurisdiction was limited to ascertain
whether or not the goods imported by the
respondents were spare parts and accessories.
5. Therefore, he could not have lumped together
the two consignments which, though imported
under one licence, arrived separately and were
received on different dates.
6. The, Bench also held that upon the principle it
was not for the Collector to ascertain whether
the goods, if assembled together, would
constitute 51 "Rixe" Mopeds.

7. The respondents were entitled to import the

said goods and the respondents consequently
could not have been held guilty of breach either
of any law.

SC accepted the decision of the Division bench.

Apparel Export Promotion Council vs. A.K.

Chopra
(1999) 1 SCC 759

Bench: Dr. Anand, CJI and V. N. Khare

Decision by: Dr. Anand, CJI

Facts
1. The respondent was working as a Private
Secretary to the Chairman of the Apparel
Export Promotion Council.
2. It was alleged that on 12.8.1988, he tried to
molest a woman employee of the Council who
was at the relevant time working as a Clerk-cumTypist.
3. She was not competent or trained to take
dictations. The respondent, however, insisted
that she go with him to the Business Centre at
Taj Palace Hotel for taking dictation from the
Chairman and type out the matter.

4. Under the pressure of the respondent, she went

to take the dictation from the Chairman. While
Miss X was waiting for the Director in the room,
the respondent tried to sit too close to her and
despite her objection did not give up his
objectionable behaviour.
5. She later on took dictation from the Director.
The respondent told her to type it at the
Business Centre of the Taj Palace Hotel, which is
located in the Basement of the Hotel.

6. He offered to help her so that her typing was

not found fault with by the Director. He
volunteered to show her the Business Centre for
getting the matter typed and taking advantage
of the isolated place, again tried to sit close to
her and touch her despite her objections.
7. The draft typed matter was corrected by
Director (Finance) who asked Miss X to retype
the same. The respondent again went with her
to the Business Centre and repeated his
overtures.

8. Miss X told the respondent that she would

leave the place if he continued to behave like
that. The respondent did not stop.
9. Though he went out from the Business Centre
for a while, he again came back and resumed his
objectionable acts.
10. According to Miss X, the respondent had tried
to molest her physically in the lift also while
coming to the basement but she saved herself
by pressing the emergency button, which made
the door of the lift to open.

11. On the next day, that is on 16th August, 1988

Miss X was unable to meet the Director
(Personnel) for lodging her complaint against the
respondent as he was busy. She succeeded in
meeting him only on 17th August, 1988 and
apart from narrating the whole incident to him
orally submitted a written complaint also.
12. The respondent was placed under suspension
vide an order dated 18th August, 1988. A
charge-sheet was served on him to which he
gave a reply denying the allegations and
asserting that the allegations were imaginary
and motivated.

13. A Director of the Council, was appointed as an Enquiry

Officer to enquire into the charges framed against the
respondent. On behalf of the management with a view
to prove the charges as many as six witnesses were
examined including Miss X.

14. The Enquiry Officer after considering the documentary

and oral evidence and the circumstances of the case
arrived at the conclusion that the respondent had acted
against moral sanctions and that his acts against Miss X
did not withstand the test of decency and modesty. He,
therefore, held the charges levelled against the
respondent as proved.

15. The Enquiry Officer concluded that Miss X was

molested by the respondent at Taj Palace Hotel
on 12th August, 1988 and that the respondent
had tried to touch her person in the Business
Centre with ulterior motives despite reprimands
by her. The Disciplinary Authority agreeing with
the report of the Enquiry Officer, imposed the
penalty of removing him from service with
immediate effect on 28th June, 1989.

16. Aggrieved, by an order of removal from service,

the respondent filed a departmental appeal before
the Staff Committee of the appellant.

17. During the pendency of the departmental appeal

the respondent filed a writ petition before the High
Court.
18. The Writ Petition was allowed and were directed to
act upon the decision of the Staff Committee
assuming as if the decision had been taken at the
34th Meeting of the Staff Committee on 25th July,
1990.

19. The appellant challenged the judgment and

order of the High Court dated 30th January,
1992, through Special Leave Petition (Civil)
No.3204 of 1992 in the Supreme Court.

In the Supreme Court

1. The Supreme Court set aside the judgment of

the Delhi High Court on the ground that it was
premature as the final ratification of the
dismissal of service of the respondent is still
pending before the staff committee.
2. So the SC directed the appellant to have
meeting of the staff committee to decide upon
the matter.

3. Pursuant to the above directions, the Staff

Committee met again and considered the entire
issue and came to the conclusion that the order
passed by the Director General terminating the
services of the respondent on 28th June, 1989
was legal, proper and valid. The appeal was
dismissed and the removal of the respondent for
causing sexual harassment to Miss X was upheld.
The respondent, thereupon, filed Writ Petition
No.352 of 1995 in the High Court, challenging his
removal from service as well as the decision of
the Staff Committee dismissing his departmental
appeal.

4. In the HC again: The learned Single Judge allowing

the Writ Petition opined that ...
a. the petitioner tried to molest and not that the
petitioner had in fact molested the complainant.
b. The learned Single Judge, therefore, disposed of
the Writ Petition with a direction that the
respondent be reinstated in service but that he
would not be entitled to receive any back wages.
c. The appellant was directed to consider the period
between the date of removal of the respondent
from service and the date of reinstatement as the
period spent on duty and to give him consequential
promotion and all other benefits.
d. It was, however, directed that the respondent be
posted in any other office outside Delhi, at least for
a period of two years.

5. The appellant, co., filed an appeal to the Division

bench of the HC against the order of
reinstatement. The respondent also filed another
appeal for wages and appropriate posting.
6. The Division Bench agreed with the findings
recorded by the learned Single Judge that the
respondent had tried to molest and that he had
not actually molested Miss X and that he had not
managed to make the slightest physical contact
with the lady and went on to hold that such an
act of the respondent was not a sufficient ground
for his dismissal from service.

7. The appellant then filed this special leave

petition in the SC.
8. In the SC Again: Both the learned Single Judge
and the Division Bench did not doubt the
correctness of the following facts :
a. That Miss X was a subordinate employee while
the respondent was the superior officer in the
organization;
b. That Miss X was not qualified to take any
dictation and had so told the respondent;

c. That the respondent pressurized her to come

with him to Taj Palace Hotel to take dictation
despite her protestation;
d. That the respondent taking advantage of his
position, tried to molest Miss X and in spite of
her protestation, continued with his activities
which were against the moral sanctions and did
not withstand the test of decency and modesty;
e. That the respondent tried to sit too close to Miss
X with ulterior motives;

f. That the respondent was repeating his implicit

unwelcome sexual advances;
g. That the respondent acted in a manner which
demonstrated unwelcome sexual advances;
h. That action of the respondent created an
intimidated and hostile working environment in
so far as Miss X is concerned.

9. The HC has overdone with the evidence. As the

appellate authority, the Staff Committee was the
last authority to have questions on the veracity of
facts.
10. In the instant case, the High Court appears to have
totally ignored the intent and content of the
International Conventions and Norms while dealing
with the case. The observations made by the High
Court to the effect that since the respondent did
not actually molest Miss X but only tried to molest
her and, therefore, his removal from service was
not warranted rebel against realism and lose their
sanctity and credibility.