N.K. Bajpai Vs. UOI (Supreme Court)
The appellant joined the Indian Customs and Central Excise Service, Class – I (later called Group ‘A’), in the year 1956, where he served for a number of years, in different capacities. On 1st November, 1990, the appellant was selected as a Member (Technical) in the Customs, Excise and Gold (Control) Appellate -Tribunal (CEGAT). The appellant demitted his office as Member (Technical) of CEGAT on 7th March, 1993. As he was a law graduate, he was enrolled as an advocate with the Bar Council of India on 18th March, 1993. The CEGAT was replaced by the Central Excise and Service Tax Appellate Tribunal (for short, ‘the CESTAT/Tribunal’. Vide Finance Act, 2003, Section 129(6) was introduced to the Customs Act, 1962 (for short ‘Customs Act’) in terms of which, the members of the Tribunal were debarred from appearing, acting or pleading before it.
Aggrieved by this amendment, the appellant along with other appellants in other appeals claimed to have met the Finance Minister and submitted a detailed representation bringing out the inequities and arbitrariness claimed to be resulting from the insertion of Section 129(6) of the Customs Act. The Tribunal, on 9th July, 2007, passed an order holding that the appellant or the persons similarly situated, were not entitled to appear before it in view of the bar contained in Section 129(6) of the Customs Act. In the meanwhile, the Ministry also responded negatively to the representations submitted by the appellants. Faced with these circumstances, the appellants filed a writ petition before the High Court of Delhi at New Delhi being Writ -Petition No.6712 of 2007, which was heard by a Division Bench of the High Court and was dismissed vide judgment dated 13th April, 2009, hence, giving rise to the present appeals.
It is held that except where the challenge is on the grounds of legislative incompetence or the restriction imposed was ex facie unreasonable, arbitrary and violative of Part III of the Constitution of India, the restriction would be held to be valid and enforceable.
As regards the constitutional challenge, while the right to practice as an advocate is not only a statutory right under the Advocates Act but is also a fundamental right under Article 19(1)(g) of the Constitution, it is subject to reasonable restrictions. The restriction imposed by s. 129(6) of the Customs Act is constitutional because (i) the restriction is partial to the extent of practice before CESTAT and does not bar practice before other judicial bodies & (ii) the restriction is intended to serve a larger public interest and to uplift the professional values and standards of advocacy in the country. It adds to public confidence in the administration of justice by the Tribunal;
The contention that the restriction is based on an illogical presumption of likelihood of bias is also not acceptable because when one has been a member of a Tribunal over a long period and other members have been his co-members, it is difficult to hold that there would be no possibility of bias or no real danger of bias. Even if this possibility was ruled out, it is still in the interest of the institution that restrictions are enforced. Then alone will the mind of the litigant be free from a lurking doubt of likelihood of bias and this would enhance the image of the Tribunal;
In the present case, the restriction would be applied uniformly to all the practicing advocates as well as to the advocates who would join the profession in future and would achieve the object of the Customs Act without leading to any absurd results. On the contrary, its uniform application would achieve fair results without really visiting any serious prejudice upon the class of the advocates -who were earlier the members of the Tribunal as it remains open to them to practice in other tribunals, forums and courts. If an exception was carved out in their favor, it would lead to an anomaly as well as an absurd situation frustrating the very purpose and object of Section 129(6) of the Act. Provisions of Section 129(6) of the Customs Act and its operation cannot be faulted with. Another half- hearted attempt was made to raise a contention that the appellants can continue to appear before the Tribunal as they are permitted to do so in terms of Section 146A of the Customs Act, despite the provisions of Section 129(6) of the Customs Act. We are unable to find any merit in this contention as well. The provisions of Section 129(6) of the Customs Act are specific and both these provisions have to be construed harmoniously. We find nothing contradictory in these three provisions. Section 146(2)(c) of the Customs Act refers to the appearance by a legal practitioner who is entitled to practice as such in accordance with law. Section 129(6) places a restriction, which is reasonable and valid restriction, as held by us above. Thus, the provisions of Section 146A of the Act would have to be read in conjunction with and harmoniously to Section 129(6) of the Customs Act and the person who earns a disqualification under this provision cannot derive any extra benefit -contrary to Section 129(6) of the Customs Act from the reading of Section 146A of the Customs Act. Thus, we have no hesitation in rejecting this contention as well.