- (1.)THE subject matter of the present writ proceeding is an order of penalty, against the petitioner, of compulsory retirement, passed by the Collector of. Customs on 6th January, 1981.
(2.)THE relevant facts succinctly stated are that the petitioner was an Examining Officer at the relevant time attached to the customs department; a disciplinary proceeding was initiated against the petitioner under the provisions of Central Civil Services (Classification, Con 364 was a difference of opinion between the disciplinary Authority and the Enquiring Authority an opportunity ought to have been given to the petitioner substantially in the form of a second show cause notice. Lastly, the propriety and validity of the order of penalty has been challenged on the ground, inter alia, that the findings on Which such order of compulsory retirement is based are perverse.
(3.)MR. D. K. Sen, appearing on behalf of the Respondents, has contested the propriety of the submissions made on behalf of the petitioner. According to mr. Sen there has been no violation of the Rules but the same have been strictly followed; the documents which were required to be supplied had been supplied. The petitioner was not entitled to get copy of the preliminary reports asked for as those were no part of the enquiry and the Enquiry Officer was not relying on them nor were those in the list of documents, on which the department proposed to rely. Non-supply of such documents cannot amount to violation of the principles of natural justice. In this connection, Mr. Sen has further contended that the principles of natural justice would operate only where there is no express or implied exclusion. According to Mr. Sen case, the petitioner can not canvas violation of the principles of natural Justice either for non-supply of documents or for failure of the punishing Authority to offer the petitioner an opportunity of being heard for the second time against the punishment imposed, unless convince this Court that the same were warranted by the provisions of the Rules referred to above. Mr. Sen has contended that rule 14 Sub-rule 13 of the Central Civil services (Classification Control and Appeal) Rules empowers the Enquiry Officer to refuse to supply documents, claimed to be privileged documents in terms of the said Rule. In this particular case such privilege having been claimed by the Department, the petitioner cannot insist upon supply of the copies of such privileged documents. In developing the said submission, Mr. Sen has meticulously traced the growth of the principle of natural justice and the extent of its applicability as recognised by judicial pronouncements. In substance he has tried to establish that the principle of natural justice cannot supplant the law but can only supplement the same. It is within the exclusive jurisdiction of the Legislature to frame the law and the function of the Courts of law is to interpret the law as it stands. The Courts are not empowered to using the legislative domain and legislate even if the Court finds that a particular provision of law is operating harshly. Legislative Enactments by their terms often exclude the application of the principles of natural justice such exclusion may be by express language or by implication. In this particular case, mr. Sen has contended, the terms of rule 14, by imposing obligation on the disciplinary Authority to see that documents, specified in the said Rule are furnished to the delinquent employee, impliedly excluded the right of the employee to ask for other documents even if such deprivation is contrary to the principles of natural justice. Mr. Sen has relied upon the decision reported in AIR 1971 S. C. 40 where the claim of the delinquent Officer had been negatived on reasons which accordingly to him, directly apply to the present case. Lastly, Mr. Sen has contended that the evidence was properly considered by the Punishing Authority and even if there are some apparent errors in the findings of such authority, if the conclusion can be sustain-ed on totality of evidence in spite of such errors, the writ Court should not interfere.