P. K. Bahari, J.

(1) THIS writ petition has been brought seeking quashment of order of suspension dated May 10,1993, and also the show-cause notice issued on even date by respondent No. 1- Apparel Export Promotion Council (hereinafter referred to as the Council). Petitioner No. 1 is a company incorporated under the Companies Act and petitioner No. 2 is its Managing Director. The petitioner No. 1 is engaged, inter alia, in the business of fabrication for export of various kinds of garments and is registered as an exporter with respondent No. 1 the Council.

(2) THE export of readymade garments to various countries of the world is on the basis of bilateral agreements entered into between the Government of India and other Governments of the importing countries. On the basis of such bilateral agreements a particular quantity of garments is permitted to be imported in particular importing countries. The countries like USA restrict import of cotton garments and issue quotas to various countries including India. Respondent No. 1 the Council has been constituted by the Government forgetting the exporters registered so as to allocate the export quotas of garments to such registered members.

(3) THE Garment Export Entitlement Policy 1991-93 had been issued and in terms of that policy petitioner No. 1 has been allocated the quota which petitioner No. 1 is entitled to export. According to Rule 2 (iv) (a) (b) for utilization of the past performance entitlement the year has been divided into two periods, the first period is from 1st January to 31st May and me second period is from 1st June to 30th September and if 50% of the total allotment is not utilised in the first period the same automatically is treated as surrendered unless its validity is extended by furnishing necessary EMD as mentioned in para 7. Para 7 makes it clear that the entitlement certificate can be revalidated beyond the last date of original validity subject to the conditions that it could be revalidated upto the period of 30 days calculated from the first day of the stipulated validity by submitting net additional 15% EMD of FOB and for another 30 days on submission of further net additional 15% EMD of FOB. The export quota allocated to petitioner No. l is also on the basis of weight.

(4) BEFORE exporting the goods the exporter is liable to obtain a certificate from the Council which must contain the details as to the quantity of the garments and its weight and petitioner No. 1 had obtained such a certificate in respect of three consignments wherein he gave the weight as 1200 kgs in respect of 4,000 pieces, 360 kgs in respect of 1,200 pieces and again 450 kgs in respect of 1,200 pieces. On shipping document being presented at CFS, Patparganj, me Assistant Collector of Customs, informed the Council that on weighment it was found that instead of 1200 kgs in the first consignment the weight was 2600 kgs and in place of 360 kgs in me second consignment the weight was 780 kgs and lastly in the third consignment instead of 450 kgs me weight found was 780 kgs.

(5) A show-cause notice dated May 10,1993, was served on the petitioner No. 1 to explain as to why the registration-cum-membership of the petitioner No. 1 be not cancelled. On the same date the impugned order was also passed suspending the membership of petitioners for three months i. e. with effect from May 10,1993 to August 9,1993, in terms of para 222-A of Chapter XIII of the Handbook of Import-Export Procedures 1992-97.

(6) BY virtue of Section 3 of the Imports and Exports (Controls) Act, 1947, the Central Government had notified on March 31,1992, the Export and Import Policy for me period 1992-97. The aforesaid Act came to be repealed and replaced by Foreign Trade (Development and Regulation) Act, 1992. Under para 298 (3) of the Handbook issued under the previous Import and Export Policy there had been given power to the registering authority to suspend the membership during the pendency of the inquiry or investigation for canceling the membership of any exporter registered with the registering authority.

(7) IN order to make the position clear the Handbook of Procedures for the period April 1, 1992 to March 31,1997 was issued in which it was clarified that the policy issued under the previous statute would be deemed to have been notified under the new Act and in pursuance of provisions of paragraph 16 of the policy published on April 30, 1992, known as "handbook of Procedures" the present compilation as amended from time to time shall remain in force until March 31,1997. This Handbook came to be issued in March 1993 treating it as a revised edition. Before issuance of this Handbook a public notice had been issued on November 3, 1992, by virtue of which para 222-A was added to the Handbook of Procedures then existing which gave the power to the registering authority to suspend the membership. However, me similar power did exist in the previous Handbook in para 298 (3).

(8) SO, it is evident that this Handbook has been issued by virtue of the powers given in para 16 of the Import and Export Policy (1992-97). But in this Handbook para 222-A did not find mention. Under clause 4 of the Import and Export Policy of the relevant year the amendment could be made by issuance of a public notice. So, the amendment which incorporated para 222-A in the Handbook of Procedures was on the basis of a public notice issued on November 3, 1992.

(9) THE contention being raised before me by me learned counsel for the petitioners is that as this particular para 222-A stood omitted from the Handbook issued in March 1993 me Council had no power to pass any order of suspension. The learned counsel for respondent No. 1, on the other hand, has contended that no public notice had been issued canceling para 222-A and thus, the Handbook of Procedures did not stand amended in that connection and mere fact that by some clerical mistake this para 222-A stands omitted from the new Handbook of Procedures, the same would not have the effect of deletion of the said para from the procedure.

(10) HE has, in the alternate, argued that even if there is no specific power conferred on the Council for suspending the membership me said power is incidental to the substantive power given to the Council in para 222 for de-registering the exporter member after issuing show-cause notice.

(11) SO, the first question to be decided in the present case is whether para 222-A stood deleted from the Handbook of Procedures or not by a public notice and amendment stands effected in the Handbook of Procedures by which the power, which was earlier conferred by public notice dated November 3, 1992, stood withdrawn by deletion of para 222-A from the Handbook of Procedures It is not possible to countenance the contention of the learned counsel for Respondent No. 1 that this particular Handbook of Procedures cannot be treated as a public notice. After all this Handbook of Procedures had been issued by virtue of powers given under para 16 of the Import and Export Policy issued under the statute. So, this particular Handbook has to be termed as statutory document which incorporates the procedure pertaining to the Import and Export Policy of 1992-1997. It is true that in the forward to this Handbook it is recorded that it is a revised edition but para 1 in Chapter I makes it very clear that this revised edition is issued in pursuance of the provisions of paragraph 16 of the Import and Export Policy (1992-1997).

(12) THERE has taken place a slight change in clause 3 of the Import and Export Policy which existed prior to March 1993 when it was introduced in March 1993. In the previous Import and Export Policy any amendment could be made in the policy by issuance of a public notice and it need not have been published in the official gazette but in the policy introduced from March 1993 an amendment could be made only by issuance of a public notice which is published in the official gazette. So, by issuing Handbook of Procedures containing all the provisions as amended upto March 31,1993, me amendment which was introduced in para 222-A by public notice dated November 3,1992, stood deleted. So, I hold that there was no specific power given in Handbook of Procedures pertaining to the period April 1993 to March 1997 for suspending the membership by the registering authority after March 1993.

(13) THE next question to be seen is whether such power of suspension should be deemed to be incidental to the power conferred on the Council i. e. registering authority by Para 222. Para 222 of the Handbook of Procedures reads as follows: The EPC or FIEO may de-register an exporter for a specified period for violation of the conditions of registration. Before such de-registration the exporter shall be given a Show Cause Notice by the EPC or FIEO, as the case be, and a reasonable opportunity to make a representation against the proposed de-registration. "

(14) IT is, indeed, cannot be disputed that the Import and Export Policy and the Handbook of Procedures issued by the Government is in the interest of keeping proper control over me export of garments according to the quota which is made available to this country by importing countries. There are a large number of people in this country who would be keen to export garments to various countries as admittedly exports fetch huge profits to the exporters and the Government is also very keen to encourage the exports to earn foreign exchange which is so vital for the health of economy of this country.

(15) HOWEVER, where the exports and imports arerestricted by the importing countries and the quota is given to this country by the importing countries under bilateral agreements it becomes incumbent on the part of the Government to see that those bilateral agreements are not violated by the exporters of this country in any manner and no undue benefit is derived by any exporter at the cost of another exporter in this country. Exports have to move fast and the Council also has to act with speed in performing its duties imposed on it under the Handbook of Procedures. The power given to the registering authority i. e. the Council under Para 222 of the Handbook of Procedures for canceling the registration-cum-membership of the exporter would include the power to suspend. Otherwise if such a power is not implied in the substantive power the very purpose of exercising any control over the exporters would disappear because the exporter can transfer his quota to any other exporter and by the time the proceedings for canceling the registration are completed the quota of the exporter can stand exhausted and the cancellation of registration would be of no meaning.

(16) IN Sub-Divisional Officer Vs Shambhoo Narain Singh, AIR 1970 SC 140 [LQ/SC/1969/149] , the short question which arose for consideration was whether under U. P. Panchayat Raj Act, there is available any power to the State Government to suspend a Pradhan of a Gaon Sabha pending inquiry into charges leveled against him No specific power to suspend a Pradhan pending inquiry into charges leveled against him has been conferred on the State Government by the statute. The Supreme Court, however, held that it is well recognized that where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the court must be satisfied mat me existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power.

(17) SIMILAR principal was laid down in Attorney General Vs Smethwick Corporation, (1932)1 Chancery Division 562. It was laid down that whatever may fairly be recorded as incidental to or consequential upon those things which the Legislature has authorised ought not to be held by judicial construction to be ultra vires. It was observed that unless it is expressly prohibited by the Legislature such incidental powers must be deemed to be conferred for carrying out the purpose of the. So, I hold that mere is an incidental power of suspension available to the Council which flows from me substantive power given to the Council under Para 222 mentioned above for canceling the membership.

(18) THE learned counsel for the petitioner has vehement ally argued that it was incumbent upon the Council to have issued a show-cause notice before passing the order of suspension as the same has very adverse civil consequence on the business of the petitioner. She has argued that under Article 21 of the Constitution of India the petitioners have fundamental right of livelihood which stands transgressed by issuing an order of suspension without affording an opportunity of hearing. She has referred to the well known judgment of the Supreme Court in the case of Smt. Maneka Gandhi Vs Union of India and Another, AIR 1978 SC 597 [LQ/SC/1978/27] . In the said case under Section 10 of the Passport Act the passport of the petitioner had been impounded without affording any opportunity of hearing to the petitioner and the Supreme Court held that although there are no positive words in me statute requiring that me party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice.

(19) IN the present case the final order has not been passed under Para 222 till the filing of the writ petition for which a show-cause notice has been served on the petitioner. The short question for decision is whether in the present case a show-cause notice ought to have been issued of not before passing me Older of suspension. The Supreme Court has laid down in Liberty Oil Mills and Ors. Vs Union of India and Ors. , ,air 1984 SC 1271 [LQ/SC/1984/127] , while dealing with the Imports and Exports (Control) Act, 1947 and also the Imports (Control) Order, 1955, that Clause 8-B of the Control Order gives the power to keep the licence application in abeyance for holding inquiry. The question arose whether such an order could be passed without giving a show-cause notice or opportunity of hearing. The Supreme Court held that there is no rule of justice or fair play which requires the authority to seek the comments of the person concerned before embarking upon an investigation and it was further observed that it may be that the opportunity to be heard may not be pre-decisional and it may have to necessarily give an opportunity of hearing post-decisional.

(20) SO, it depends upon the provisions of different statutes to see as to whether a opportunity of hearing ought to be given before passing the order or such an opportunity can be given after passing of the order. In this very judgment, it was held that if any representation is given after the passing of the older and that is duly considered it would amount to giving an opportunity of hearing.

(21) IN the present case also, the urgency of the matter required that suspension order be passed and in case the petitioners so desired they could give a representation and obtain the opportunity of hearing. So, it cannot be said that the impugned order of suspension stands vitiated for want of giving any opportunity of hearing.

(22) DURING the pendency of me writ petition, it appears that the Customs authorities have reduced the redemption fine from Rs. 1,00,000. 00, Rs. 30,000. 00 and Rs. 25,000. 00 to Rs. 1,00. 00, Rs. 500. 00 and Rs. 500. 00 in respect of three consignments as per order dated June 10, 1993 and the respondent No. 1 the Council has also, after having the reply of the petitioners to" the show-cause notice, passed the order under Para 222 and has revoked the suspension of the petitioners with effect from May 31,1993. Later on the application of the petitioners and on petitioners furnishing the bank guarantee in accordance with the Rules, the extension has been granted to the petitioners for exporting their quota of the first period till July 31,1993. Under the Rules the Respondent No. 1 has no authority to extend that period beyond July 31,1993.

(23) COUNSEL for the petitioners has argued that there was only technical defect which appeared in the papers of the petitioners for exporting the said three consignments and thus, the petitioners should not be punished for such technical omissions on their part and the petitioners may be allowed to export the whole quantity of their quota at least till August 31,1993 or merge the unutilised quota with quota of subsequent period. I am afraid that no such relief can be granted by this Court when it is not proved that respondent No. 1 had passed any illegal order. Order which was made on May 10,1993, for suspending the registration of the petitioner stands now substituted by the final order made by the Disciplinary Committee of Respondent No. 1 dated June 15,1993, by which the de-registration of the petitioner has been confined only to the period May, 10, 1993 to May 30, 1993. This particular order dated June 15,1993, has not been challenged. So, as a matter of fact, the petition challenging the order of suspension has almost become in fructuous.

(24) IN view of the above discussion, I find no merit in this petition which I, hereby, dismiss but leave the parties to bear their own costs.