2006 PLP 1542 (MLD)

MUHAMMAD AKHTAR SHABBIR, J.

The appellant has called in question the order, dated 30-9-2004, passed by the Adjudication Officer of the State Bank of Pakistan, Lahore.

2. This appeal arises out of the facts that a complaint has been filed by the State Bank of Pakistan, Lahore, through its authorized officer before the Adjudication Officer on 10-6-2003, alleging therein that the appellant Messrs Sheikh Carpets (Pvt.) Ltd. Lahore had exported hand knotted carpets valuing US$. 244,598/85 to France under "E" Form No.UNB-0012089, on or about 12-4-1995 and despite undertaking the appellant failed to repatriate the balance sale proceeds US$.42,603/37 within the stipulated period and thus contravened the provisions of section 12(1) of Foreign Exchange Regulation Act, 1947.

3. In response to show-cause notice, dated 11-6-2003, under Rule 41 4(1) of the Adjudication Proceedings and Appeal Rules, 1988, the accused/appellant appeared before the Adjudication Officer, on 16-6-2003 and submitted that for non-realization of balance export proceeds was due to non-cooperative attitude of the authorized dealer. The accused-appellant was directed to submit complete record of the case on the next date of hearing for further proceedings in the matter and also arrange realization of the balance sale proceeds. Numerous opportunities were granted to the appellant on their request with the direction to realize the balance sale proceeds but the appellant failed to do the needful despite expiry of considerable time, the authorized officer proceeded to hear the case under Rule 4(10) of the Adjudication Proceedings and Appeal Rules, 1988. After recording the statement of the complainant, Authorized Dealer and scrutiny of relevant record produced before the said Court declared that the appellant has contravened the provisions of section 12(1) of Foreign Exchange Regulation Act, 1947 and imposed a fine of Rs.3,25,000 upon the appellant.

4. The learned counsel for the appellant contended that the Adjudication Officer while passing the impugned order has not adopted the procedure prescribed in Rule 4, sub-rule (4) to sub-rule (4), therefore, the order impugned is not sustainable in law.

5. On the other hand, the learned counsel for respondent No.2, as well as F.E.O., for State Bank of Pakistan, vehemently opposed the arguments of the learned counsel for the appellant and supported the impugned order.

6. I have heard the learned counsel for the parties and perused the record. The procedure has been provided in the adjudication proceedings in Appeal Rules, 1988. The relevant Rule 4, envisaged that for determining whether a person has contravened any of the provisions of subsections (4), (5) or (6) of section 23B, the Adjudication Officer shall serve a notice on such person requiring him to show cause, within fifteen days of the date of the service of the notice on him, why the penalty proposed in the notice should not be imposed on him.

7. Sub-rule (4) of Rule, 4 enshrines that a person to whom notice under sub-rule (1) is issued shall invariably be asked to submit his explanation in writing and whether, additionally, he desires to be heard in person or through a duly authorized representative or an Advocate.

8. Sub-rule (5), further emerges that after considering the cause, if any, shown by a person in his reply in writing to a notice under sub-rule (1), no case is made out, the notice shall be vacated by the Adjudication Officer by an order in writing. But, if the Adjudication Officer is of the opinion that adjudication proceedings be continued, he shall issue a notice fixing a date for appearance of that person either personally or through a counsel or any other authorized representative.

9. Sub-rule (6), further contemplates that on the date fixed under sub-rule (5), the Adjudication Officer shall explain to the person proceeded against, or his counsel or representative, the contravention or the offence alleged to have been committed by such person indicating the provision of the Act or the rules, directions or orders made thereunder in respect of which the contravention is alleged to have taken place. If such person pleads guilty the Adjudication Officer shall impose penalty authorized under the Act.

10. As per sub-rule (7), in the event the person proceeded against does not plead guilty under sub-rule (6) the proceedings under sub-rule (6) shall be summarized in an appropriate order by the Adjudication Officer, a copy of which shall be made available to such person, and shall frame the charge relating to the contravention or offence alleged against him.

11. Sub-rule (8), further provided that the Adjudication Officer shall, after framing the charge under sub-rule (7) give opportunity to such person to produce such documents or evidence as he may consider relevant to the inquiry and in respect whereof submits list of documents and witnesses forthwith and, if necessary, the hearing may be adjourned to a future date for production of the oral and documentary evidence, but thereafter the hearing shall proceed, as far as may be possible, from day to day.

12. As per language of sub-rule 4, a notice is mandatory, issued under sub-rule 1 to a person who shall `invariably' be asked to submit his explanation in writing. The word `invariably' has been defined in "Concise Oxford Dictionary" 9th Edition as always, unchangeable, which would mean that it is requirement of the rules that the accused to whom notice issued shall always be asked to submit his explanation in writing and if from the explanation made by accused and his personal hearing the Adjudication Officer is of the opinion that the proceedings be continued, he shall issue a notice fixing a date for appearance of that person either personally or through a counsel or any other authorized representative. If the accused-person to whom to notice is issued pleads guilty, the Authorized Officer shall impose penalty under the law and if the person proceeded against does not plead guilty under sub-rule (6), the Authorized Officer shall frame the charge against him relating to contravention or offence alleged against him and Authorized Officer, after framing the charge under sub-rule (5) would provide opportunity to such person to produce such document or the evidence as he may consider relevant to the inquiry. While passing the impugned order the Authorized Officer has not performed the requirement of sub-rule (4) to sub-rule (8). The accused-appellant was not asked to file his written explanation nor it was determined that the appellant had pleaded guilty or had he pleaded guilty or had he pleaded guilty? He has not framed the charge. It is settled proposition that the judicial or quasi-judicial authority is under legal obligation to complete the requirement of law and the act should be completed as per the prescribed procedure provided in the law and rules. Neither the accused-appellant was asked to file his written explanation nor any charge was framed against the appellant and without performing the mandatory requirement of law, the statement of the complainant and the authorized dealer had been recorded. The appellant was not provided an opportunity to defend his case. It is settled proposition of law that where a method was prescribed to do a thing it must be done in that way and not otherwise as the law laid down in case of Javed Hotel (Pvt.) Limited v. Capital Development Authority (PLD 1994 Lahore 315). Further observed in case of Mst. Qaisra Ellahi v. Hazara (Hill Tract) Improvement Trust through Chairman and 5 others (PLD 1995 Peshawar 22), that any act is to be done in a particular manner it has to be done in that way and not in any other manner. This argument further supported by a judgment passed in The Collector of Customs v. Muhammad Akram (PLD 1999 Peshawar 33). In case of New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others (2001 CLC 1589) and Jagin and 2 others v. The State (PLD 2001 Quetta 64). The Honourable Judges of Division Bench has laid down that when the law provided the procedure for doing a thing in a particular manner that should be in that way or not at all. The rule laid down in the above referred cases has not been performed and the Adjudication Officer has deviated the prescribed procedure.

13. For the foregoing reasons, the impugned order, dated 30-9-2004, is not sustainable in law. Resultantly, this appeal is accepted and the case is remanded to the Adjudication Officer for fresh decision, after issuance of notice to the appellant in accordance with the prescribed procedure in Foreign Exchange Regulation Act, 1947. S.M.B./S-139/L Appeal accepted.