Dismissed

Haileyburia Tea Esates Limited v. Union of India

Kerala HC1 Oct 2020WA/1265/2020

Case brief

AI extract

What is this about?

The Court dismissed a writ appeal challenging the suspension of factory and buyer registration of a tea estate for engaging in unfair trade practices by buying back its own tea sold at auction. The Court held that the statutory authorities acted within their powers under the TEA (Marketing) Control Order, 2003, and the High Court should not interfere with factual findings absent perversity or ille

What the court decided

AI extract

Haileyburia Tea Esates Limited Vs Union of India — Quashing and FIR | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶4

¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶6

THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942

¶7

WA.No.1265 OF 2020

¶8

AGAINST THE JUDGMENT IN WP(C) 17661/2020(G) OF HIGH COURT OF KERALA

¶9

APPELLANTS:

¶10

1 HAILEYBURIA TEA ESATES LIMITED MARAR ROAD, WILLINGDON ISLAND, COCHIN-682 003, REPRESENTED BY ITS CHIEF MARKETING OFFICER MR.SHRESHTH DUGAR.

¶11

2 SHRESHTH DUGAR,

¶12

S/O.ASHOK DUGAR, A-081, DLF RIVERSIDE, VYTILLA,

¶13

COCHIN-682 019.

¶14

BY ADVS. SRI.JOSEPH KODIANTHARA (SR.) SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SHRI.ALEXANDER JOSEPH MARKOS SHRI.SHARAD JOSEPH KODANTHARA

¶15

RESPONDENTS:

¶16

1 UNION OF INDIA REPRESENTED BY ITS JOINT SECRETARY (PLANTATION), MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COMMERCE, UDYOG BAHVAN, NEW DELHI-110 001.

¶17

2 THE TEA BOARD OF INDIA, 14 B.T.M. SARANI, KOLKATA-700 001, REPRESENTED BY ITS DEPUTY CHAIRMAN AND REGISTERING AUTHORITY.

¶18

3 THE CONTROLLER OF LICENSING, THE TEA BOARD OF INDIA, 14 B.T.M. SARANI, KOLKATA-700 001.

¶19

4 TEA BOARD OF INDIA REGIONAL OFFICER, INDIRA GANDHI ROAD, WILLINGODN ISLAND, COCHIN-682 003, REPRESENTED BY ITS JOINT CONTROLLER OF LICENSING.

¶20

WA.No.1265 OF 2020

¶21

¶22

5 TEA TRADE ASSOCIATION OF COCHIN, TEA TRADE CENTRE, WILLINGODN ISLAND, KOCHI-682 003, REPRESENTED BY ITS SECRETARY.

¶23

R2-R4 BY ADV. SRI.E.K.NANDAKUMAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.VIJAYAKUMAR, ASG FOR R1, SRI.C.K.KARUNAKARAN, FOR R5

¶24

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-09-2020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:

WA.No.1265 OF 2020

JUDGMENT

SHAJI P.CHALY,J

The captioned writ appeal is filed by the writ petitioner challenging the judgment of the learned Single Judge in W.P.C No.17661 of 2020 dated 23.9.2020, whereby Ext.P26 order passed by the Government of India, the appellate authority under the TEA (Marketing) Control Order, 2003 was affirmed and accordingly dismissed the writ petition. Ext.P26 order is passed by the appellate authority confirming the findings, however, modifying the order passed by the TEA Board and reducing the suspension period to one month under the TEA (Marketing) Control Order, 2003 dated 1.7.2020, whereby it was found that the appellants indeed tried to circumvent the Pan India Auction Rules and indulged in unfair trade practice by resorting to buy its own tea in connivance with some registered buyers. It was further found that the whole episode exposes the unethical business practices followed by the appellants for its own narrow commercial deal at

¶30

the cost of transparency and trust on the basis of which the whole edifice Tea auction system rests. Thereupon it was held that the Tea Board has every reason to believe

¶31

WA.No.1265 OF 2020

¶32

¶33

that unfair trade practice was followed by the appellants which could not be brushed aside as it can affect the Tea Marketing system including public auction of tea and accordingly decided to suspend the factory registration (RC-27) of semnivalley tea estate factory owned by the appellants and the buyer registration certificate number KOL/B-7511 of the appellants for a period of three months w.e.f. 1^st July, 2020.

¶34

The learned Single Judge after assimilating the factual and legal situation and the principles of law laid down by the Apex Court in the matter of interference in writ jurisdiction in administrative matters has dismissed the writ petition ultimately holding as follows in paragraph 17:

¶35

“ 17. When the competent authorities, on the basis of materials before it coupled with admission of the petitioner company, were satisfied that the practice adopted by the registrant was adversely affecting the faith in the public auction system, and that the 100 years' experience of the petitioner company ought to have been supportive for adding to the faith and transparency of the system and found it appropriate to invoke para 5(g) and 6(e) of the TMCO 2003, this Court would not be justified in interfering with the same. Though it was argued by the learned Senior Counsel for the petitioner that suspension of manufacturing registration was unwarranted, I am of the view that

¶36

WA.No.1265 OF 2020

¶37

¶38

this Court is not supposed to substitute the decision of respondents 1 or 2, as the question whether one registration need alone be cancelled or both the registration should be cancelled is also a matter within the realm of the statutory authorities. At any rate, the activity of buy back and selling at auction involves both the registrations. Accordingly, this Writ Petition is dismissed. "

¶39

It is thus challenging the legality and

¶40

correctness of the judgment of the learned Single Judge the appeal is preferred. The paramount contention advanced by the appellants in the appeal is that the learned Single

¶41

Judge has not taken note of the fact that the order was passed by the appellate authority without dealing with any of the contentions raised by the petitioner and discloses a clear case of non application of mind since it is evident that the appellate authority has not quoted any rule or any provision that was violated warranting such penalty levied on the allegation that the appellants had bought back tea sold at auction and thereafter repacked and brought to sale again at auction after complying with all pre-sale requirements.

¶42

It is also submitted that there was no discussion

¶43

as to what is the unfair trade practice in the context of orders and rules of the 2^nd respondent Tea Board since the

¶44

WA.No.1265 OF 2020

¶45

¶46

order does not cite any rule that is stated to have been violated by the appellants. It is predominantly contented that there is no such rule in the Order, 2003 or in the Pan India Auction Rules, 2015 that prohibits tea sold at auctions being re-packed and thereafter brought to sell at the auction. It is also contended that while Ext.P6 letter of the Tea Board of India only sought to disallow the petitioner from participation in public auctions where the alleged unfair trade practice took place, Ext.P23 order of the 2^nd respondent which has now being confirmed by the

¶47

appellate authority while reducing the period of suspension, has arbitrarily and erroneously suspended the entire factory registration of the appellants which is completely unrelated to the issue in question. It is also submitted that the stoppage of the entire factory work is of no benefit to anybody and in fact operates to the detriment of all concerned and is against the public interest. With the aforesaid contentions it is submitted that the order impugned was absolutely arbitrary and illegal and implementation of the same with immediate effect of the punishment of suspension is patently arbitrary, illegal and unjustified.

¶48

According to the appellants, consequent to the

¶49

WA.No.1265 OF 2020

¶50

¶51

manufacturing ban and closure of the appellants' factory and entire operations at the three estates the appellants have totally lost 43 days which is more than the 30 days suspension directed in Ext.P26 impugned order of the appellate authority. It is also submitted that the estate of the 1^st appellant employs around 800 persons including at the factory and therefore, closure of the factory will result practically closure of the entire estate activities which is highly prejudicial not only to the appellants but only to the employees.

¶52

On the other hand learned Senior Counsel appearing for the Tea Board of India, the 2^nd respondent in the appeal, submitted that the contention advanced by the appellants that the issue of unfair trade practice was not a subject matter of consideration by the Tea Board of India in its Ext.P23 order is not correct since clear

¶53

findings are rendered with respect to the same. Learned senior counsel also submitted that on a perusal of Ext.P3 Tea Board Order makes it clear that the power conferred on the Tea Board as per clause 6 of Order, 2003 for cancellation/suspension of registration of buyer takes in

¶54

a buyer indulging in unfair trade practices which may adversely affect the marketing system including the public

WA.No.1265 OF 2020

tea auction system.

It is submitted that as per clause 6 (1) of Order, 2003 the Registering Authority may after giving the buyer an opportunity of being heard, cancel or suspend the registration on anyone or more of the grounds delineated thereunder and submitted that grounds (b) to (e), dealing with misrepresentation of any material facts by buyer at the time of obtaining registration or subsequently; violation of any of the provisions of the Act or the Order, 2003; failure to carry out any direction of Registering Authority; and if the Registering Authority has reason to believe that the buyer is indulging in unfair trade practices adversely affecting the market system including the public tea auction enables the Registering Authority to cancel or suspend the registration.

¶59

8.It is further submitted by the learned senior counsel for the 2^nd respondent Tea Board that the Tea Board has taken into account the entire factual situations and has clearly found out that the appellants have indulged in unfair trade practice and has specifically invited our attention to the operative portion of the order wherein it is clearly found that there was unfair trade practice on

¶60

WA.No.1265 OF 2020

¶61

¶62

the part of the 1^st appellant. It is also submitted that the appellate authority in its order at paragraph 13 has clearly found out that the appellant Tea company has indulged in unfair trade practices.

¶63

It is also submitted that when the statutory

¶64

authority is given liberty under the Order, 2003 to impose punishment on account of unfair trade practice, it is for the said authority to analyse the factual situation and identify as to the nature of unfair trade practice in which the appellant Tea company has indulged. Therefore,

¶65

when the order was passed by the primary authority taking into account the factual circumstances leading to the suspension of the appellant tea company, which was reappreciated by the appellate authority, the appellants cannot assert their right based on facts in a writ petition under Article 226 of the Constitution of India and therefore, the learned Single Judge was right in not interfering with the orders passed by the fact finding

¶66

bodies. It is also submitted that appellants have not made out any ground of perversity or any other adverse situations justifying interference exercising the writ jurisdiction under Article 226 of the Constitution of India, in the orders passed by the statutory authorities.

¶67

WA.No.1265 OF 2020

¶68

¶69

The learned counsel appearing for Tea Trade Association of Cochin, the 5^th respondent has also advanced arguments supporting the contentions put forth by the learned senior counsel for the Tea Board.

¶70

We have heard learned Senior Counsel Sri.Joseph Kodiyanthra for the appellants, learned Senior Advocate Sri.E.K.Nandakumar for the Tea Board of India and Sri.C.K.Karunakaran for the Tea Trade Association of Cochin and perused the pleadings and entire materials on record.

¶71

The sole question emerges for consideration is whether any interference is warranted to the impugned judgment of the learned Single Judge ? The learned Single Judge has basically gone through the powers vested in the Tea Board under the TEA (Marketing) Control Order, 2003 and has found that by virtue of the powers conferred under clause 6 of the Order, 2003 the authority is vested with power to suspend the activities of the 1^st appellant company.

¶72

We also find that the learned Single Judge has taken note of the factual situations leading to the enquiry conducted against the 1^st appellant company and appreciation of the same in Exts.P23 and P26 orders

¶73

WA.No.1265 OF 2020

¶74

¶75

passed by the Tea Board as well as the appellate authority, and has found that the punishment of suspension was ordered absolutely taking note of the

¶76

factual situations and therefore, unless and until there is grave error of law or perversity or patent illegality or irrationality or lacking power to take the decision

¶77

and procedural irregularity, there is no scope to interfere with the findings rendered exercising the power of judicial review under Article 226 of the Constitution of India.

¶78

It was also found that there is no basis for the argument that there is no power vested with the Tea Board or the appellate authority to take action on the basis of the unfair trade practice since the Registering Authority is vested with power under clause 6 of Order, 2003. We also find that such findings were rendered by

¶79

the learned Single Judge taking into account the proposition of law laid down by the Apex Court in various judgments. Learned Single Judge has also taken note of the definition of unfair trade practice under the Consumer Protection Act, 2019 and has found that in Ext.P23 order the appellate authority found that the action of the appellant company in buying back its own

¶80

WA.No.1265 OF 2020

¶81

¶82

tea, which was sold at auction and selling it again after re-packing in and cataloguing it at the auction platform was not bonafide and it affected the credibility of the public auction system which is based on good faith and fair play and that such action amounts to unfair trade practice.

¶83

Therefore, on analysing clauses 5 and 6 of Order,

¶84

2003 it was held that the Registering Authority is empowered to cancel and suspend the registration when it has reason to believe that the activities of a registrant may affect the online marketing system as well as the public tea auction system. It was accordingly held that the practice adopted by the appellant company adversely affecting the system can be termed as unfair trade practice. Though the 1^st appellant company has advanced a contention that suspension of manufacturing registration was unwarranted in the issue of unfair trade practice in auction, learned Single Judge was of the view that the findings rendered by the fact finding bodies cannot be substituted since the question whether one registration need alone be cancelled or both the registration should

¶85

be cancelled is also a matter within the realm of the statutory authorities and it was further found that at

¶86

WA.No.1265 OF 2020

¶87

¶88

any rate the activity of buy back and selling at auction involves both the registrations.

¶89

Learned Senior Counsel appearing for the Tea Board in the matter of contention raised by the appellants with regard to the unfair trade practice, has invited our attention to the judgment of the Apex Court

¶90

in Securities and Exchange Board of India v. Rakhi Trading Private Limited [(2018)13 SCC 753] and submitted that when the unfair trade practice is not defined under the Tea Board's order, the statutory authority is vested

¶91

with ample power to ascertain from the facts and circumstances the nature of activity in which the appellant company has involved adversely affecting the provisions of the Board Order, 2013 and remaining adverse to the auction procedure undertaken by the Tea Board. Paragraphs 34 & 35 of the judgment in Rakhi Trading ( supra ) is relevant to the context, which read thus:

¶92

"34. We are unable to agree with the arguments of the learned senior Counsel appearing for Rakhi Trading. Regulation 4(1) in clear and unmistakable terms has provided that "no person shall indulge in a fraudulent or an unfair trade practice in securities". In Securities and Exchange Board of India and Ors. v. Shri Kanaiyalal Baldevbhai Patel and Ors. MANU/SC/1188/2017, it has been held by this Court that a trade practice is unfair if the

¶93

WA.No.1265 OF 2020

¶94

¶95

conduct undermines the ethical standards and good faith dealings between the parties engaged in business transactions. To quote:

¶96

Although unfair trade practice has not been defined under the Regulation, various other legislations in India have defined the concept of unfair trade practice in different contexts. A clear cut generalized definition of the 'unfair trade practice' may not be possible to be culled out from the aforesaid definitions. Broadly trade practice is unfair if the conduct undermines the ethical standards and good faith dealings between parties engaged in business transactions. It is to be noted that unfair trade practices are not subject to a single definition; rather it requires adjudication on case to case basis. Whether an act or practice is unfair is to be determined by all the facts and circumstances surrounding the transaction. In the context of this Regulation a trade practice may be unfair, if the conduct undermines the good faith dealings involved in the transaction. Moreover the concept of 'unfairness' appears to be broader than and includes the concept of 'deception' or 'fraud'.

¶97

xxx xxx xxx

¶98

Coupled with the above, is the fact, the said conduct can also be construed to be an act of unfair trade practice, which though not a defined expression, has to be understood comprehensively to include any act beyond a fair conduct of business including the business in sale and purchase of

¶99

WA.No.1265 OF 2020

¶100

¶101

securities. However the said question, as suggested by my learned Brother, Ramana, J. is being kept open for a decision in a more appropriate occasion as the resolution required presently can be made irrespective of a decision on the said question 35. Having regard to the fact that the dealings in the stock exchange are governed by the principles of fair play and transparency, one does not have to labour much on the meaning of unfair trade practices in securities. Contextually and in simple words, it means a practice which does not conform to the fair and transparent principles of trades in the stock market. In the instant case, one party booked gains and the other party booked a loss. Nobody intentionally trades for loss. An intentional trading for loss per se, is not a genuine dealing in securities. The platform of the stock exchange has been used for a non-genuine trade. Trading is always with the aim to make profits. But if one party consistently makes loss and that too in preplanned and rapid reverse trades, it is not genuine; it is an unfair trade practice. Securities market, as the 1956 Act provides in the preamble, does not permit "undesirable transactions in securities". The Act intends to prevent undesirable transactions in securities by regulating the business of dealing therein. Undesirable transactions would certainly include unfair practices in trade. The SEBI Act, 1992 was enacted to protect the interest of the investors in securities. Protection of interest of investors should necessarily include prevention of misuse of the market. Orchestrated trades are a misuse of the market mechanism. It is playing the market and it affects the market integrity."

¶102

WA.No.1265 OF 2020

¶103

¶104

On an analysis of the rival contentions raised

¶105

and the proposition of law laid down by the Apex Court as

¶106

above, we find force in the contention advanced by learned Senior Counsel for the Tea Board. We also find that the learned Single Judge has considered the said

¶107

issue and has assigned reasons to arrive at the conclusion that there was unfair trade practice on the part of the appellant company. The appellants have not placed any materials so as to arrive at any different conclusions rather than the ones found out by the primary authority the appellate authority and the learned Single Judge.

¶108

While holding so, it is well settled that the realm of interference of the writ court against the factual findings rendered by the statutory authorities are very limited confining to perversity, gross illegality, lack of power etc. we are of the opinion that the learned Single Judge has correctly applied the principles of law when the jurisdiction was declined as was sought for by the appellants. In that regard learned Senior Counsel for the Tea Board has invited our attention to the judgment of the Apex Court in Vasavi Engineering College Parents Association v. State of

¶109

WA.No.1265 OF 2020

¶110

¶111

Telangana and others [(2019)7SCC 172] which considered an issue with respect to determination of fee by fee regulatory committee vis-a-vis the scope of judicial review. The Apex Court after conducting a survey of the earlier judgments has rested its findings in paragraphs 17 to 22 and they read thus:

¶112

17. . Judicial review, as is well known, lies against the decision making process and not the merits of the decision itself. If the decision - making process is flawed inter alia by violation of the basic principles of natural justice, is ultra - vires the powers of the decision maker, takes into consideration irrelevant materials or excludes relevant materials, admits materials behind the back of the person to be affected or is such that no reasonable person would have taken such a decision in the circumstances, the court may step in to correct the error by setting aside such decision and requiring the decision maker to take a fresh decision in accordance with the law. The court, in the garb of judicial review, cannot usurp the jurisdiction of the decision maker and make the decision itself. Neither can it act as an appellate authority of the TFARC. In Fertilizer Corporation Kamgar Union (Regd.), Sindri v Union of India , 1981 (1) SCC 568, it was observed:"35 We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the directorate of a

¶113

WA.No.1265 OF 2020

¶114

¶115

government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration."

¶116

18. . Judicial restraint in exercise of Judicial review was considered in the State of (NCT) of Delhi vs. Sanjeev , 2005 (5) SCC 181 as follows: - "16....One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). If the power has been exercised on a non - consideration or non - application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated." 19. . It needs no emphasis that complex executive decisions in economic matters are necessarily empiric and based on experimentation. Its validity cannot be tested on any rigid principles or the application of any straitjacket formula. The court while adjudging the validity of an executive decision in economic matters must grant a certain measure of freedom or play in the joints to the executive. Not mere errors,

¶117

WA.No.1265 OF 2020

¶118

¶119

but only palpably arbitrary decisions alone can be interfered with in judicial review. The recommendation made by a statutory body consisting of domain experts not being to the satisfaction of the State Government is an entirely different matter with which we were not concerned in the present discussion. The court should therefore be loath to interfere with such recommendation of an expert body, and accepted by the government, unless it suffers from the vice of arbitrariness, irrationality, perversity or violates any provisions of the law under which it is constituted. The court cannot sit as an appellate authority, entering the arena of disputed facts and figures to opine with regard to manner in which the TAFRC ought to have proceeded without any finding of any violation of rules or procedure. If a statutory body has not exercised jurisdiction properly the only option is to remand the matter for fresh consideration and not to usurp the powers of the authority. In Peerless General Finance and Investment Co. Ltd. vs. Reserve Bank of India , 1992 (2) SCC 343, it was observed:"31. The function of the court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can

¶120

WA.No.1265 OF 2020

¶121

¶122

seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts." 20. . In the context of Indian jurisprudence, the Constitution is the supreme law. All executive or legislative actions have to be tested on the anvil of the same. Such actions will have to draw their sustenance as also their boundaries under the same. Any action falling foul of the constitutional guarantees will call for corrective action in judicial review to ensure adherence to the constitutional ethos. But so long as the fabric of the constitutional ethos is not set asunder, the court will have to exercise restraint, more particularly in matters concerning domain experts, else the risk of justice being based on individual perceptions which may render myths as realities inconsistent with the constitutional ethos. Courts often adjudicate disputes that raise the question of how strictly should they scrutinise executive or legislative action. Therefore, courts have identified certain questions as being inappropriate for judicial resolution or have refused on competency grounds to substitute their judgement for that of another person on a particular matter. The need for judicial restraint with regard to recommendations of expert committees, more particularly in matters relating to finance and economics, was considered in BALCO Employees' Union (Regd.) vs. Union of India , 2002(2) SCC 333, it was held:"65...Nevertheless, contention is sought to be raised that the method of valuation was faulty, some assets were not taken into consideration and that Rs.551.5 crores offered by M/s. Sterlite did not represent the correct value of 51% shares of the Company along with its controlling interest. It is not for this

¶123

WA.No.1265 OF 2020

¶124

¶125

Court to consider whether the price which was fixed by the Evaluation Committee at Rs.551.5 crores was correct or not. What has to be seen in exercise of judicial review of administrative action is to examine whether proper procedure has been followed and whether the reserve price which was fixed is arbitrarily low and on the face of it, unacceptable.xxxxxxxxxxxx98. In the case of a policy decision on economic matters, the courts should be very circumspect in conducting any enquiry or investigation and must be most reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself." 21. . Similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi , 2008 (4) SCC 720, observing as follows:"80 As regards economic and other regulatory legislation judicial restraint must be observed by the court and greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialisation when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the court to encroach into the domain of the executive or legislative (sic legislature) and try to enforce its own views and perceptions."

¶126

22. . The need for judicial restraint in economic and financial matters based on reports of domain experts was again considered in Tamil Nadu Generation and Distribution Corporation Ltd. vs. CSEPDI - Trishe Consortium , 2017 (4) SCC 318, holding as follows:"36.... At this juncture we are obliged to say

¶127

WA.No.1265 OF 2020

¶128

¶129

that in a complex fiscal evaluation the Court has to

¶130

apply the doctrine of restraint. Several aspects, clauses, contingencies, etc. have to be factored. These calculations are best left to experts and those who have knowledge and skills in the field. The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants. The courts cannot really enter into the said realm in exercise of power of judicial review. We cannot sit in appeal over the financial consultant's assessment. Suffice it to say, it is neither ex facie erroneous nor can we perceive as flawed for being perverse or absurd."

¶131

Circumstances being so, we do not think that the

¶132

learned Single Judge has committed any error in exercising the discretionary jurisdiction conferred under

¶133

Article 226 of the Constitution of India so as to interfere in an appeal preferred under section 5 of the Kerala High Court Act.

¶134

Therefore, we are of the considered opinion that

¶135

the appellants have not made out any material

¶136

circumstance either factual or legal to interfere with the judgment of the learned Single Judge. However, learned senior counsel for appellants submitted that the punishment imposed by the appellate authority is

¶137

WA.No.1265 OF 2020

¶138

¶139

disproportionate and therefore, interference is required

¶140

in the punishment imposed and reduce the suspension period till date. In fact the Tea Board after analysing the factual situations was of the clear opinion that the appellant company has indulged in unfair trade practice by resorting to buying its own tea in connivance with some registered buyers by circumventing the Pan India Auction Rules and it was accordingly that the punishment of three months was imposed w.e.f. 1^st July, 2020.

¶141

Anyhow the appellate authority has reduced the

¶142

penalty of suspension to one month from the date of the appellate order by exercising the powers conferred under clause 24 of Order, 2003 taking into account the assurance of the appellant company that the practice of buying back their own tea has been stopped and would not be adopted in future and also the current COVID-19 pandemic situations. Even though learned senior counsel for appellant has raised a contention that the appellate authority has imposed the punishment of one month alone and therefore, the said punishment has superseded the punishment imposed by the Tea Board for a period of three months, we are of the considered opinion that on a reading of Ext.P23 order it is clear that the punishment

¶143

WA.No.1265 OF 2020

¶144

¶145

was reduced by the appellate authority to one month from

¶146

the date of issue of the order and therefore, we are of

¶147

the clear opinion that the one month of reduced punishment is over and above the punishment already suffered consequent to the order of the Tea Board. That apart taking into account the unfair trade practice adopted by the appellants we are of the considered opinion that there is no reason to interfere with the punishment imposed since the same being proportionate to the unfair trade practice adopted by the 1^st appellant company.

¶148

Upshot of the above discussion is that, the

¶149

appellants have not made out any ground for interference with the judgment of the learned Single Judge. Needless to say, appeal fails, and accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE