Holding

The Supreme Court dismissed the appeal, holding that it cannot entertain a fresh plea not previously raised and cannot act as an appellate authority over the high administrative orders.

Summary

Anil Mishra, a Deputy Commissioner of Central Excise & Customs, challenged an adverse entry for the year 2000‑01. He filed representations to the Chief Commissioner and the Central Government, both of which were rejected. He then moved an Original Application before the Central Administrative Tribunal alleging the entry was made malafide; the Tribunal dismissed it. A writ petition before the Punjab & Haryana High Court was also dismissed. On special leave, Mishra appealed to the Supreme Court, raising a fresh plea that the isolated entry was biased because entries in other years were not adverse. The Court held that the plea was not raised before the Tribunal or High Court and therefore could not be taken for the first time before the Supreme Court, and that the Court could not act as an appellate authority over the orders of senior officials. No bias was found, and the appeal was dismissed.

Issues considered

Whether the Supreme Court can entertain a fresh plea of bias not raised before the Administrative Tribunal or the High Court.
Whether the Supreme Court can sit as an appellate authority over the orders of the Chief Commissioner and the Central Government.
Scope of judicial review of adverse entries made by administrative authorities.

Legislation cited

Constitution of Indias. Art. 136

Subjects

Administrative lawJudicial reviewAdverse entryBiasSpecial leave petitionCentral ExciseCentral Administrative TribunalAppellate jurisdiction

Judgment

t
\<--
<=
[2008] 11 S.C.R. 542

A ANIL MISHRA
...;
-
v.
UNION OF INDIA AND ORS .
. (Civil appeal No.4724 of 2008)
JULY 30, 2008
B
.[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.] )" .... I

I '
Administrative Law - Executive action - Judicial review I

- Scope of - Adverse entry - Communicated to Appellant,
,__
c Dy. Comr[lissioner of Central Excise & Customs - Represen-
tation against - Rejected by Chief Commissioner by detailed
speaking order - Further representation to Central Govern-
ment also rejected - O.A. by Appellant before Tribunal, con-
tending thqt the adverse entry had been made malafide - Dis-
missed-: Writ petition before High Court also dismissed - On
D
appeal, held: Three senior officers considered Appellant's case
~
and rejected
. . . the same - Court cannot sit as an appellate au-
thority; OVf)f .these orders - Chief Commissioner and Central
Government are very high authorities and they considered
the representations of Appellant - Moreover, no bias attrib- i

E uted to Chief Commissioner or to Central Government. L

Constitution of India, 1950 - Art. 136 - New Plea - Plea
not taken before Tribunal or High Court - Held: Cannot be
tak(jn for the first time before Supreme Court.
F Appellant was a Deputy Commissioner of Central )a.. "-
Excise & Customs. An adverse entry was communicated
to him for the year 2000-2001. Against the adverse entry,
Appellant filed representation which was rejected by the
Chief Commissioner. Against the order of Chief Commis-
G sioner, Appellant made further representation to the Cen-
tral Government, which too was rejected. Appellant filed
O.A. before the Administrative Tribunal, contending that 'f ~

the adverse entry had been made malafide. Tribunal re-
jected the 0.A. Against the order, Appellant filed writ peti-
H 542
ANIL MISHRA v. UNION OF INDIA 543
& ORS.

....
'\
,._ tion before High Court, which was also dismissed. Hence A
the present appeal.
Dismissing the appeal, the Court
HELD:1.1.This is not a case where the adverse en-
try was not communicated to the Appellant. It was not only B
,>.. ., communicated but the Appellant made representation
against the adverse entry, which was considered by the
Chief Commissioner, who rejected the representation by
a detailed speaking order. Further memorial to the Cen-
tral Government has also been considered and dismissed. c
Thus three senior officers have considered the
appellant's case and rejected the same. The Court can-
not sit as an appellate authority over these orders. [Para
7) [545-G,H; 546-A-B]
1.2. The appellant submitted that the entries before D
2000 and after 2000 were not adverse to the appellant,
__ ,... and hence the isolated entry for 2000 appears to be bi-
ased. This plea was not taken by the appellant before the
Tribunal or the High Court, and hence cannot be allowed
to be taken for the first time before this Court. If the appel- E
lant wanted to take this plea, he could have done it be-
fore the Tribunal or the High Court. Even if the entries
before or after 2000 had not been communicated to him,
he could have filed an application before the Tribunal or
the High Court for summoning of these entries, and the F
Tribunal and the High Court could have summoned the
same. However, the appellant filed no such application
'
"" before the Tribunal for summoning these entries. Hence
the appellant has himself to blame. Had the appellant taken
such a plea before the Tribunal and the High Court, the
G
respondent authorities would have had an opportunity
to file a reply in rebuttal to this plea. Since the appellant
did not take this plea before the Tribunal or the High Court;
-y
the department had no opportunity to reply to it. Hence
one cannot allow this plea to be ta.ken before this Court.
H
544 SUPREME COURT REPORTS [2008] 11 S.C.R.

A [Paras 8,9, 10] [546-C,E-H]
1,3. The Chief Commissioner and the Central Gov-
ernment are very high authorities and they considered
the representations of the appellant. No bias has been
attributed to the Chief Commissioner or to the Central
B Government. [Para 11] [547-A]
Tata Cellular vs. Union of India, AIR 1996 SC 11 - re-
f~rred to.

Case Law Reference
c
AIR 1996 SC 11 referred to Para 7
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4724
of 2008
D From the final Judgment and Order dated 61312006 of the
High Court of Punjab and Haryana at Chandigarh in C.W.P. No.
CAT-3526 of 2006
P.N. Puri, Dhiraj and hari Shankar for the Appellant.
E Ashok Bhan, Aruna Gupta, Vandana Mishra and B. Krishna
Prasad for the Respondents.
The Judgment of the Court was delivered by
MARKANDEY KAT JU, J. 1. Leave granted.
F 2. This appeal by special leave has been filed against the
judgment of the Punjab and Haryana High Court dated 6.3.2006
in C.W.P. No.3526 of 2006. .:.... '
· 3. Heard learned counsel for the parties and perused the
record.
G
4. The appellant Anil Mishra was a Deputy Commissioner
of Central Excise & Customs, Central Government. He filed an
O.A. before the Central Administrative Tribunal, Chandigarh
Bench, challenging the adverse entry made to him for the year
H 2000-01 vide letter dated 16.1.2002.
ANIL MISHRA v. UNION OF INDIA 545
& ORS. [MARKANDEY KAT JU, J.]
+-
5. Against that adverse entry he had earlier filed a repre- A
sentation which was rejected by the Chief Commissioner by
order dated 14.7.2003. Against the order of the Chief Com-
missioner, the appellant made further representation to the
Central Government, which was rejected by the Competent
Authority of the Central Government, which has been conveyed B
,>. -( by the Under Secretary to the Government of India by his letter
dated 30.9.2004.
5. Before the Tribunal the appellant submitted that the ad-
verse entry had been made malafide. This fact had been con-
sidered by the Tribunal in para 9 of its order and the Tribunal c
observed that the appellant had not brought to its notice any
extraneous factor or reason as to why the concerned authority
should have acted in a malafide manner. Moreover, the
appellant's representation against that adverse entry was re-
jected by the Chief Commissioner, and his further representa- D
tion to the Central Government was also rejected. Hence the
Tribunal rejected the OA of the appellant.
6. Against the order of the Tribunal, the appellant filed a
writ petition before the High Court, which was also dismissed.
The High Court noted that the plea of bias had been consid- E
ered by the Tribunal after an examination of the files and was
rejected. The High Court also observed that the appellant's rep-
resentation was rejected by the Chief Commissioner, who
was a very senior officer, after s~eing the rE~cord of the appel-
lant, and the memorial filed by the appellant was also rejected F

If" ~' vide order dated 30.9.2004.
7. We have perused the record and heard the learned
counsel for the parties, and we see no reason to interfere with
the orders of the High Court or the Tribunal. This is not a case
{
G
where the adverse entry was not communicated to the appel-
lant. It was not only communicated but the appellant made rep-
.,. resentation against the adverse entry, which was consid-
ered by the Chief Commissioner, who rejected the representa-
tion by a detailed speaking order of 5 pages. Further memorial
H
546 SUPREME COURT REPORTS [2008] 11 S.C.R.

to the Central Government has also been considered and dis- -1· \o'"
A
missed. Thus three senior officers have considered the
appellant's case and rejected the same. We cannot sit as an
appellate authority over these orders. The scope of judicial re-
view of administrative orders is limited as has been repeatedly
B held by this Court, vide Tata Cellular vs. Union of India, AIR
1996 SC 11,
8. Learned counsel for the appellant submitted that the
)
"'
entries before 2000 and after 2000 were not adverse to the
appellant, and hence the isolated entry for 2000 appears to be
c biased. This plea was not taken by the appellant before the
Tribunal or the High Court, and hence we cannot allow it to be
taken for the first time before us. Learned counsel for the ap-
pellant submitted that the appellant was not aware of the good
entries before and after the year 2000, and hence the appellant
D could not bring it to the notice of the Tribunal and the High Court.
He also submitted that the entries before the year 2000 and
after the year 2000 are good entries, and this shows that the
isolated entry in the year 2000 was for extraneous consider-
ations.
E 9. We are of the opinion that if the appellant wanted to
take this plea, he could have done it before the Tribunal or the
High Court. Even if the entries before or after 2000 had not
been communicated to him, he could have filed an application
before the Tribunal or the High Court for summoning of these
F entries, and the Tribunal and the High Court could have sum-
moned the same. However, the appellant filed no such applica-
>-- "
tion before the Tribunal for summoning these entries. Hence
the appellant has himself to blame.
10. Had the appellant taken such a plea before the Tribu-
G
nal and the High Court, the respondent authorities would have
had an opportunity to file a reply in rebuttal to this plea. Since
the appellant did not take this p!ea before the Tribunal or the
T
High Court, the department had no opportunity to reply to it.
Hence we cannot allow this plea to be taken before us.
H
ANIL MISHRA v. UNION OF INDIA 547
& ORS. [MARKANDEY KAT JU, J.]

11. The Chief Commissioner and the Central Government A
are very high authorities and they have considered the repre-
sentations of the appellant. No bias has been attributed to the
Chief Commissioner or to the Central Government.
12. For the reasons given above, we find no merit in this
appeal and hence it is dismissed. No costs. 8
8.8.B. Appeal dismissed.