Civil Appeal No 739 of 1991
From the Judgment and Order dated 1631990 of the Punjab and Haryana High Court in Regular Second Appeal No 405 of 1990
GB Pai and PN Gupta for the Appellant
Ashok K Mahajan for the Respondent
The Judgment of the Court was delivered by KANIA J
Leave granted
Counsel heard
This is an appeal by Special Leave against the decision of a learned Single Judge of the Punjab and Haryana High Court dismissing summarily Regular Second appeal No 405 of 1990 in that Court
The relevant facts can be stated very shortly
At the relevant time respondent No 1 was an officer being the Manager in the Hardwar Branch of the appellant Bank a Government of India Undertaking
On April 2 1982 a show cause notice was served on respondent No 1 in respect of several irregularities lapses acts omissions and so on
On May 41982 respondent No I submitted his reply to the said show cause notice denying the charges made against him and asking for the holding of an enquiry into the allegations
On July 17 1984 respondent No 1 was promoted from Scale II to Scale Ill by the appellant
It appears from the record that disciplinary action was contemplated against respondent No I but in November 1984 the disciplinary proceedings contemplated against respondent No 1 were kept in abeyance as some of the allegations against him were under investigation by the Central Bureau of Investigation CBI On March 11 1988 interviews for promotion from Scale III to Scale IV were conducted and respondent No 1 was one of the officers interviewed for promotion
On April 27 1988 a charge sheet was served on respondent No 1
On May 27 1988 an enquiry was ordered against him and the Commissioner of Departmental Enquiries Government of India was appointed as the Enquiry Officer
On June 30 1988 respondent No 1 filed a suit in the Court of Sub Judge Second Class Jallandhar 476 for a declaration that the Order dated April 271988 by which respondent No I was served with charge sheet was illegal and in violation of the Service Regulations and unsustainable in law and prayed for permanent injunction restraining the appellant and others from proceeding with the enquiry on the basis of the said charge sheet
One of the main contentions urged on behalf of respondent No 1 in the said suit was that by reason of the promotion granted to him from Scale II to Scale Ill on July 17 1984 as aforestated which was after the irregularities and misconduct aileged against him had been committed and in view of the said promotion the appellant must be deemed to have condoned the earlier misconduct if any of respondent No 1 and thereafter it was not open to the appellant to take any action against respondent No I in respect of the said misconduct
This contention found favour with learned Trial Judge who gave a declaration that the order serving the charge sheet on respondent No 1 was illegal and restrained the appellant and others from proceeding with the enquiry on the basis of the said charge sheet
An appeal was preferred by the appellant against the said order in the court of learned Additional District Judge Jallandhar but it was dismissed as learned Additional District Judge accepted the reasoning and conclusions of the learned Trial Judge
The second appeal against the decision of learned Additional District Judge was dismissed by the High Court and this is an appeal directed against the judgment of the High Court
It was submitted before us by Mr Pai learned Counsel for the appellant that the promotion granted to respondent No 1 from Scale II to Scale Ill on July 17 1984 could not be regarded in law as condonation of the earlier acts of misconduct committed by respondent No 1
It was urged by him that at that time no disciplinary proceedings had been initiated against respondent No I and in view of this the appellant had no option but to consider respondent No 1 for promotion for which he was entitled to be considered and to promote him if he was found fit for promotion
It was on the other hand contended by MrRao learned counsel for the respondent that the earlier acts of respondent No 1 even if they constituted misconduct could not be relied upon to take any disciplinary action against respondent No I because they were condoned by reason of the aforesaid promotion
In considering the submissions of the respective parties we have to bear in mind that it is accepted before us that in law the mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of 477 consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion
In the present case we find that this legal position is reinforced by clause 9 of the Promotion Policy of the appellant Bank
Clause 9 reads as follows Clause 9
Officers in respect of whom disciplinary action is in process will be permitted to take part in the promotion process subject to the condition that the promotions if they are selected will be withheld until the Officer is exonerated from the charges
In such an event the promotion will be given effect to from the date on which it would have been otherwise effective but for the disciplinary action
The officer will not be eligible for promotion if punishment except censure was awarded as a result of the disciplinary action
 On a plain reading of this clause it is clear that even if disciplinary action is in process against an officer of the appellant Bank that would not entitle the appellant Bank to exclude from consideration for promotion the officer concerned if he is otherwise entitled to be so considered
The only right given to the appellant in such cases is that in case such an officer is otherwise found fit for promotion and selected for promotion that promotion can be withheld until the officer is exonerated from the charges
It is significant that the said clause goes to state that in case such an officer is exonerated from the charges promotion will have to be given effect to from the date on which it would have been otherwise effective but for the disciplinary action
This rule gives rise to the implication that till disciplinary action is in process or initiated the officer concerned against whom allegations of misconduct might be made can neither be excluded from consideration for promotion if he is entitled to be considered otherwise nor can the promotion be denied to him
In these circumstances when the promotion from Scale II to Scale Ill was granted to respondent No 1 on July 17 1984 there could be no question of condonation of the earlier acts of misconduct by reason of this promotion because in law and in view of the said Regulation 9 the appellant had no option but to consider respondent No 1 for promotion and if he was otherwise found fit for promotion to promote him
In view of this conclusion it must follow that the charge sheet submitted against respondent No 1 and the disciplinary proceedings pursuant to the said charge sheet cannot be said to be bad in law and cannot be interfered with on the ground of condonation
In our view the courts below were 478 in error in holding that the earlier alleged acts of misconduct of respondent No I had been condoned by the appellant and basing their conclusions thereon
In support of his submissions relating to the question of condonation Mr Rao relied upon the decision of a Division Bench of the Calcutta High Court in L W Middleton vs
Horry Playfair AIR 1925 Calcutta 87 and the decision of a learned Single Judge of the Nagpur High Court in District Council Amraoti through Secretary vs Vithal Vinayak Bapat AIR 1941 Nagpur 125
Both these cases lay down that once a master has condoned any misconduct on the part of servant which would have justified dismissal or a fine he cannot after such condonation go back upon his election to condone and claim a right to dismiss him or impose a fine or any other punishment in respect of the offence which has been condoned
In our view these decisions are of no relevance in the present case
At the time these decisions were rendered under the general law of master and servant it was open to the master to dismiss his servant or fine him on the ground of misconduct
On the facts of both these cases the master had the option of dismissing the servant or finding him on the ground of misconduct but voluntarily did not take the action of dismissing or fining him on the ground of misconduct and it was held that thereby the master had condoned the earlier misconduct and could not thereafter rely on the said misconduct for punishing the servant
In the case before us however at the time when the promotion was granted to respondent No I on July 17 1984 the appellant had no option but to consider respondent No I for promotion and to promote him if he was found fit as no disciplinary proceedings had been initiated against him or could be said to be in process against him as we have set out earlier
In such a case no question of condonation could arise
The ratio of decision in Lal Audhraj Singh vs State of Madhya Pradesh AIR 1967 MP 284 is also of no application to the case before us as that again was a case where the employer namely the State had the option of punishing the employee and voluntarily refrained from doing so
It was next contended by Mr Rao that even if the disciplinary proceedings against respondent No 1 were liable to be continued that constitutes no ground for holding up the promotion of respondent No 1 from Scale III to Scale IV if he was otherwise found fit for promotion as on the date when the selections for that promotion were made no charge sheet had been served on respondent No I and it is the accepted position here that till the charge sheet was submitted it could not be said that disciplinary proceedings were in process or 479 had been initiated
It was submitted by Mr Rao that this contention was fortified by the provisions of Clause 9 of the Promotional Policy of the appellant which we have discussed earlier
It was urged by him that it was on this ground that the appellant had based its case regarding the validity of the disciplinary proceedings against respondent No 1 and on the same basis respondent No I was entitled to be promoted from Scale Ill to Scale IV as from March 1988 if he was found fit
It was submitted by him that since the charge sheet was served on respondent No 1 over a month after he was considered for promotion from Scale Ill to Scale IV it was not open to the appellant to hold back the consideration of the case of respondent No I for promotion from Scale III to Scale IV or to deny him the promotion if he was found fit
It appears to us prima facie that the submissions of Mr Rao in connection with promotion of respondent No 1 from Scale Ill to Scale IV are not without substance
However it is unnecessary for us to decide this question because Mr Pai learned counsel for the appellant has agreed that without creating a precedent the appellant will grant promotion to respondent No 1 from Scale Ill to Scale IV if it is found that the Departmental Promotion Committee found him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmental enquiry being contemplated against him
In the result the appeal is allowed to the extent aforestated and the impugned order of the High Court quashing the departmental proceedings is set aside
The departmental enquiry shall be proceeded with and completed within a period of six months according to law
As far as question of promotion of respondent No 1 from Scale III to Scale IV is concerned that question will be considered in the light what has been agreed to by Mr Pai as set out earlier
Parties shall bear and pay their own costs throughout
T N A Appeal allowed


Summary:
The petitioner Corporation imported certain goods
The goods were bounded
and could not be got released due to the ban imposed by the Income Tax authorities under Section 1321 of the Income Tax Act
Subsequently after the ban was lifted the petitioner approached the authorities for clearance of the goods but the customs authorities demanded payment of customs duty at the enhanced rate which was prevailing at the time of clearance
Hence the petition er filed a Writ Petition before this Court challenging the demand as arbitrary
illegal and unconstitutional
It was contended that though the petitioner was willing to clear the goods on payment of the then prevailing custom duty the goods could not be cleared due to circumstances beyond its control by the order of the Income Tax authori ties and therefore the authorities could not claim en hanced duty
On behalf of the respondents it was contended that in view of Section 151b of the  especially the expression actually removed used therein the liability of the petitioner to pay the duty was the duty at the time of clearance of the goods
Disposing of the Writ Petition this Court 622 HELD 1
Section 151b of the clearly requires that the rate of duty rate of exchange and tariff applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actu ally removed from the warehouse
Therefore in view of the language used in Section 151b of the Act specially in the light of the expression actually removed  the petition er was liable to pay excise duty at enhanced rate prevailing on the date the goods were cleared
The prohibitory orders arbitrary or not would postpone the date of clearance and as such would postpone the determination of the duty
626F 627C Prakash Cotton Mills P Ltd vs B Sen  Ors 1979 2 SCR 1142 relied on
21 Recourse to article 32 of the Constitution can be had if there is a breach of the fundamental rights provided the other conditions are satisfied
BUt in a matter where li ability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute for which elaborate procedure is prescribed enforcing of those provisions of the Act would not breach fundamental right and without taking any resort to the provisions of the Act it is not permissible to move this Court on the theoretical basis that there is breach of fundamental right
Whenever a person complains and claims that there is a violation of law it does not involve breach of fundamental right for the en forcement of which alone article 32 of the Constitution is attracted
627E 628A D Smt
Ujjam Bai vs State of Uttar Pradesh 1963 1 SCR 778 relied on
22 In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined under the four corners of the 
627F In the instant case the petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law
There is procedure pro vided by law for determination of the payment of customs duty
The revenue has proceeded on that basis
The petition er cannot seek to remove the goods without payment at that rate or without having the matter determined by the proce dure envisaged and enjoined by the law for that determina tion
The petitioner without seeking to take any relief within the procedure envisaged under the Act had moved this Court for breach of funda 623 mental right
This is not permissible and should never be entertained
627F H Relief under Article 32 of the Constitution is there fore wholly inappropriate in the facts and circumstances of the instant case
628B