JUDGMENT Aftab Alam, J. — 1. Heard counsel for the parties. 2. Leave granted. 3. In times of fast shrinking employment opportunities, trade apprentices who have completed their training staked their claim on an old practice, long discontinued, under which the Calcutta Port Trust in the port’s Mechanical Engineering department used to make recruitment of trained apprentices and wards of employees dying in harness in the ratio of 1:1. 4. Three hundred and twenty one trained apprentices (respondents before this Court; hereinafter referred to as ‘the trained apprentices’) joined together and approached the Calcutta High Court in WP No. 21877(W)/99. They made the grievance that in disregard of the practice earlier followed, the Calcutta Port Trust was giving appointments only on compassionate grounds to the wards of their employees dying in harness and had completely stopped the recruitment of trained apprentices. They sought appropriate directions from the High Court asking the Calcutta Port Trust to appoint trained apprentices equal in number to those appointed on compassionate basis during the past many years so as to restore the 1:1 ratio between the two groups. At that stage the High Court did not pass any positive order in the matter but disposed of the writ petition directing the Chairman, Calcutta Port Trust to examine the claim of the trained apprentices and to dispose of their representation after giving them an opportunity of hearing. 5. In compliance with the order of the Court the Chairman, Calcutta Port Trust heard representatives of the trained apprentices and examined their claim. He turned down the claim by a reasoned order dated July 5, 2000. From the order it appears that the trained apprentices raised three grievances/demands before him. One, the Calcutta Port Trust should not fill up the vacancies of Firemen in the Marine department by transfer of unskilled labourers from the Mechanical Engineering department. Two, the Port Trust should maintain a list of trade apprentices who completed the apprenticeship course in the Port for consideration for employment against future vacancies and three, the vacancies of unskilled labourers in the Mechanical Engineering department should be filled up by the dependents of employees dying in harness and trained apprentices in 1:1 ratio. Two, the Port Trust should maintain a list of trade apprentices who completed the apprenticeship course in the Port for consideration for employment against future vacancies and three, the vacancies of unskilled labourers in the Mechanical Engineering department should be filled up by the dependents of employees dying in harness and trained apprentices in 1:1 ratio. In regard to the third demand the trained apprentices further claimed that during the last 20 years the ratio was not properly maintained and in order to restore it trained apprentices should be appointed in equal numbers to those appointed on compassionate basis. The Chairman noted that the posts of Fireman in the Marine department were never filled up by transfer of unskilled labourers from the Mechanical Engineering department; hence, the first grievance/ demand of the trained apprentices was quite unfounded. As regards maintenance of list of trade apprentices for appointment as Firemen the Chairman noted that the Trust was passing through great financial stringency and was burdened with surplus workforce. As a result, the Trust was not in a position to take in any more unskilled labourers or to make appointments on other posts. He further noted that there was already a list of about 1200 persons, dependents of the employees who died in harness. Similarly, a list of trained apprentices was already maintained by the Trust in light of the Central Government instructions and the decisions of this Court for giving preference to them in the matter of direct recruitment to the post(s), matching their skills and qualifications. As per the instructions, being followed by the Trust, a trained apprentice is not required to get his name sponsored by any employment exchange and he is also given relaxation of age bar to the extent of the period of training. Thus there was no occasion to maintain any other list of trained apprentices for filling up only the vacancies in the Marine department. In conclusion the Chairman passed the following order: “Notwithstanding anything contained hereinabove it is reiterated that if any occasion arises to fill up the posts of USL under Mechanical Engineering department by Direct recruitment the passed out Trade apprentices may also be considered.” 6. The trained apprentices once again went to the High Court in WP No. 9259 (W) of 2001 re-agitating their claims and challenging the order of the Chairman, Calcutta Port Trust. 7. The trained apprentices once again went to the High Court in WP No. 9259 (W) of 2001 re-agitating their claims and challenging the order of the Chairman, Calcutta Port Trust. 7. This time a learned Single Judge of the Court allowed the writ petition by judgment and order dated June 11, 2004, giving the following directions to the Calcutta Port Trust: “For the above reasons the writ petition should succeed. Accordingly, I allow the writ petition. The order impugned is hereby set aside. The respondents are hereby directed to consider the cases of the petitioners in accordance with the decisions that the respondent Port Trust had taken for giving employment to its trade apprentice in the ratio 1:1 to be maintained with the candidates from the died in harness category. Since the respondent Port Trust has already given employment to the died in harness category candidates in excess of the quota available to such category, the respondents are hereby directed to take immediate steps for rectifying the situation and restoring the balance in the quota meant for the two categories. For implementing this order the respondent shall immediately frame a scheme on the basis of such scheme they shall consider the case of the petitioners. The scheme shall be prepared and the names of the petitioners shall be placed in an appropriate panel within a period of four weeks from the date of receipt of a copy of this judgment and order by them. After preparing the scheme and the panel, the respondents shall consider the cases of the petitioners according to the scheme and panel against the available vacancies, in terms of the government order issued in the year 1983 and their own decisions as quoted hereinbefore.” 8. Against the judgment of the single Judge the appellant, Calcutta Port Trust preferred an appeal (MAT 2601 of 2004) before the Division Bench of the High Court. Against the judgment of the single Judge the appellant, Calcutta Port Trust preferred an appeal (MAT 2601 of 2004) before the Division Bench of the High Court. The appeal was dismissed by judgment and order dated May 10, 2007 and confirming the order of the single judge the Division Bench made the following observations and directions: “In the aforesaid circumstances, we are of the considered view that the learned Single Judge has rightly issued appropriate directions for considering the cases of the writ petitioners and giving employment as ex-trade Apprentices along with the died-in-harness category candidates in the ratio of 1:1 in the matter of giving employment in the Kolkata Port trust pursuant to the promise given on behalf of the said appellants and as mentioned in the written communication of Labour Advisor dated 4th January, 1985 and further considering the guidelines issued by the Government of India and mentioned in the circular dated 21st April, 1983.” 9. The appellant has brought the matter in appeal to this Court. 10. Mr. G. Vahanvati, learned Solicitor General appearing on behalf of the appellants submitted that the orders passed by the High Court were quite bad and illegal. The High Court clearly exceeded its jurisdiction in directing the appellant to give employment to three hundred and twenty one writ petitioners without any consideration of the appellant’s requirements, its financial position and other similar issues. Moreover, the High Court arrived at its conclusions on a complete misreading and misinterpretation of the relevant government guidelines and circulars and communications issued by the Port Trust. The Solicitor General emphasised that there was never ever any promise made by the appellant to absorb the trained apprentices in employment and the High Court completely misread the communication of the Labour Advisor of the Trust dated January 4, 1985 and the guidelines contained in the circular dated April 21, 1983 issued by the Government of India. 11. The Solicitor General stated that in the 1970s the Calcutta Port Trust indeed followed the practice of making recruitment of unskilled labour in the Mechanical Engineering department of the Port from amongst the dependents of employees dying in harness and trained apprentices in the ratio of 1:1. 11. The Solicitor General stated that in the 1970s the Calcutta Port Trust indeed followed the practice of making recruitment of unskilled labour in the Mechanical Engineering department of the Port from amongst the dependents of employees dying in harness and trained apprentices in the ratio of 1:1. He, however, made it clear that the practice was based neither on any statutory provision nor on agreement(s) of any binding nature; it was followed by the Trust unilaterally having regard to the circumstances obtaining at that time. He further clarified that this practice was confined only to the Mechanical Engineering department while the other departments had their own recruitment policy, depending upon their respective requirements. He then took us, one by one to the circulars, decisions, communications etc. relied upon by the High Court for making the impugned directions. 12. First in the series is a circular bearing no. D.O. DECT-1-83/AP dated April 21, 1983 issued by the Ministry of Labour and Rehabilitation (Department of Labour), Government of India. By this circular all the ministries were urged to endeavour to ensure that 50% of the total semi-skilled and skilled categories of jobs in the establishment under them should be filled by direct recruitment. Further, that 50% of the vacancies available for direct recruitment should be filled by trained apprentices and first preference be given to apprentices completing the training course under that establishment. Para.2.2 of the circular read as follows: “50% of the direct recruitment vacancies may be filled by trained apprentices first preference being given to the apprentices trained by the said establishment and thereafter to those trained by other establishment.” 13. Next is a letter of January 4, 1985 from the Labour Adviser & Industrial Relations Officer of the Port Trust to the Joint General Secretary of the Calcutta Port Shramik Union. The letter is on the subject of recruitment of the ex-trade apprentices and refers to some discussion held in that regard. As this letter is the mainstay of the High Court judgments it is reproduced below in full. “Subject: Recruitment of Ex-Trade Apprentices Dear Sir, Kindly recall the discussion held in Chairman’s room on 3.1.1985 on the above subject. Ex-Trade Apprentices were being recruited along with the died in harness candidates in the ratio of 1:1. This is now been stopped in view of the ban imposed by Government on direct recruitment. “Subject: Recruitment of Ex-Trade Apprentices Dear Sir, Kindly recall the discussion held in Chairman’s room on 3.1.1985 on the above subject. Ex-Trade Apprentices were being recruited along with the died in harness candidates in the ratio of 1:1. This is now been stopped in view of the ban imposed by Government on direct recruitment. Ex-Trade Apprentices will be recruited again as and when the ban is lifted and their quota will be restored.” It is this letter that is mainly relied on by the High Court to hold that the Port Trust was bound by its promise to recruit the trained apprentices in the same ratio as dependents of employees dying in harness. The Solicitor General submitted that it is quite unreasonable to read this letter as an unqualified promise of recruitment of trained apprentices in all future times. The letter simply said the ex-trade apprentices would be recruited and their quota would be restored again as and when the ban on direct recruitment was lifted. He pointed out that in the order of the Chairman, Calcutta Port Trust that came under challenge before the High Court it was likewise stated that the Trust was not in a position to provide employment opportunity to the trained apprentices on account of the twin problems of actuate financial distress and surplus workforce but as and when the need arises to induct unskilled labour in the Mechanical Engineering department the trained apprentices would also be considered for recruitment. There is thus no change in the stand of the Trust and there is no question of enforcement of any unconditional promise made by the Trust. 14. The Solicitor General referred to the decision in U.P. State Road Transport Corporation & Anr. Vs. U.P. Parivahan Nigam Shishukhs Berozgar Sangh & Ors.,1 (1995) 2 SCC 1 and submitted that on similar facts this Court held that the High Court was wrong in giving direction to give employment to the trainees. In regard to enforcement of promise the Court, in paragraph 10 of the decision, observed and held as follows: “For a promise to be enforceable, the same has, however, to be clear and unequivocal. We do not read any such promise in the aforesaid three documents and we, therefore, hold that at the call of promissory estoppel, the direction in question could not have been given by the High Court. We do not read any such promise in the aforesaid three documents and we, therefore, hold that at the call of promissory estoppel, the direction in question could not have been given by the High Court. But then, we are left in no doubt that the Government of India did desire that preference should be given to the trained apprentices and it is because of this that the State Government stated in its letter No.735/38-6-16(T)-79 dated 12-11-1979 that where such apprentices are available, direct recruitment should not be made. deed, the Government of India in its letter dated 23-3-1983 even desired reservation of 50 per cent vacancies for apprentice trainees.” (emphasis added) 15. Proceeding then to examine the rights of the ex-trade apprentices under the Apprentices Act, 1961 the Court, in paragraph 12 of the decision, laid down as follows: “In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training: (1) Other things being equal, a trained apprentice should be given preference over direct recruits. (2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India vs. N. Hargopal would permit this. (3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. (4) The training institute concerned would maintain a list of the persons trained year-wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.” 16. The Solicitor General submitted that in light of the decision in U.P. State Road Transport Corporation, other things being equal, the ex-trade apprentices were entitled to preference in the ways indicated in that decision. The decision made it clear that the establishment where the apprentices had completed their training was under no obligation to absorb them in employment regardless of availability of any vacancies or other considerations. The decision made it clear that the establishment where the apprentices had completed their training was under no obligation to absorb them in employment regardless of availability of any vacancies or other considerations. The trust was scrupulously following the directions of the Supreme Court in U.P. State Road Transport Corporation in the matter of recruitment of trained apprentices. 17. The Solicitor General stated that after this Court’s decision in U.P. State Road Transport Corporation the Government of India also slightly modified its policy on the matter. He referred to the letter DO NO. CGET 23 (3) dated 15 October 1996 issued under the hand of the Secretary, Ministry of Labour, Government of India. In paragraph 5 of the letter it is stated as follows: “5. I am taking this opportunity to share with you our concern about the seriousness of the problem and find practical solutions so that the trained apprentices can get regular employment either within the establishments where they have been trained or in other Government/Private sector establishment. I shall be grateful if suitable steps are initiated by your Ministry to: (a) fill up the seats located by engaging apprentices under the Apprenticeship Act for utilization of existing training facilities to the fullest extent; (b) improve the quality of training by closer monitoring of the scheme at the scheme at the shop floor level; and (c) ensure that preference is given to passed out apprentices for recruitment in regular jobs matching their skills and qualifications. (emphasis added) The Solicitor General submitted that the policy of the Government of India is to give preference to the passed out apprentices for recruitment in regular jobs matching their skills and qualification. 18. The Solicitor General reiterated that in the communication of the Legal Advisor of the Trust dated January 4, 1985 there was no promise to recruit the trained apprentices. He further submitted that in any event after the legal position was made absolutely clear by the decision in U.P. State Road Transport Corporation and following the decision the Government of India had also modified its policy regarding recruitment of trained apprentices it was completely unreasonable to make that letter the basis for the direction to appoint three hundred and twenty one trained apprentices. He further stated that even though the decision in U.P. State Road Transport Corporation was brought to the notice of the High Court it unfortunately persisted in reading the letter dated January 4, 1985 as making the promise for appointment of trained apprentices. 19. As regards the appointment of trained apprentices in equal number to appointments on compassionate basis the Solicitor General submitted that was a practice followed by the Trust at one point of time long ago when there was adequate employment potential in the port. After more than 25 years and under vastly changed conditions, both in law and in the circumstances concerning the Calcutta Port, it was no longer possible to follow the practice and to link up the appointments from two entirely different categories. The Solicitor General stated that in the past thirty years though ex-trade apprentices were appointed in substantial numbers, depending on the exigencies in certain years, the ratio of 1:1 between the two groups was never maintained. In recent years of course, employment opportunity for every group had practically dried up. In this regard he brought to our notice the following table giving the break-up of appointments made as unskilled labourer in the Mechanical Engineering department from different sources from 1979 till 2000, when this case started. In recent years of course, employment opportunity for every group had practically dried up. In this regard he brought to our notice the following table giving the break-up of appointments made as unskilled labourer in the Mechanical Engineering department from different sources from 1979 till 2000, when this case started. Year of By died- By Ex- By Casual By ST By sports Total Recruitment in-harness Trade workers candidate person candidate Apprentice 1979 54 98 140 5 X 297 1980 84 82 1 X X 167 1981 31 X X X X 31 1982 71 54 14 X 2 141 1983 6 23 1 X X 30 1984 45 9 X X X 54 l-TOTAL 291 266 156 5 2 720 1985 110 62 1 X X 173 1986 37 39 X X X 76 1987 1 X X X X 1 1988 14 4 X X X 18 1989 11 5 X 20 X 36 1990 X 2 X X 1 3 ll-TOTAL 173 112 1 20 1 307 1991 X 3 X X 3 6 1992 X X X X X X 1993 X X X X X X 1994 X X X X X X lll-TOTAL X 3 X X 3 6 1995 25 X X X X 25 1996 4 X X X X 4 1997 9 X X X X 9 1998 2 1 21 X X 24 1999 1 X 8 X X 9 2000 1 X X X X 1 IV-TOTAL 42 1 29 X X 72 TOTAL 506 382 186 25 6 1105 of I,II,III &IV 20. The Table clearly shows the number of appointments from different groups tapering off. In the ten years from 1991 to 2000, 42 persons were employed on compassionate basis and only 4 persons from amongst the ex-trade apprentices. The Solicitor General stated that appointments on compassionate basis were made only in dire cases that had the potential of causing labour unrest creating major problems. He submitted that in present conditions it is not possible to link-up the recruitments from the two categories and the High Court was in error in giving the impugned direction. 21. We find much substance in the submissions made by the Solicitor General. He submitted that in present conditions it is not possible to link-up the recruitments from the two categories and the High Court was in error in giving the impugned direction. 21. We find much substance in the submissions made by the Solicitor General. Like the case of U.P. State Road Transport Corporation we find it difficult to read in the communication of January 4, 1985 any clear, unequivocal and unqualified promise that may be enforceable after a quarter of century under vastly different conditions. We are also in agreement that the recruitments from the two categories cannot be linked-up and made contingent on each other. 22. Mr. Krishnamani, learned counsel appearing for the respondents, the trained apprentices supported the judgments of the High Court. He submitted that the High Court rightly held that the letter of the Legal Advisor dated January 4, 1985 made the promise of recruitment of the trained apprentices and restoration of the ratio between the two groups as and when the ban on direct recruitment imposed by the Central Government was lifted. Mr. Krishnamani further submitted that the ban on recruitment of ex-trade apprentices was lifted by letter dated July 30, 1986 addressed by the Secretary of the Trust to the Joint General Secretary, Calcutta Port Shramik Union and with the lifting of the ban the promise made in the earlier letter of January 4, 1985 became enforceable and binding. The letter of July 30, 1986 referred to by Mr. Krishnamani is as follows: “Dear Sir, “Subject: Absorption of the Trade Apprentices under the S.R.C. (ex.C.H.E.’s Deptt.) Reference your letter No.C/8/645 dated the 16th June, 1986. 2. The case has been considered by the Chairman. It has been decided to resume recruitment or ex-Trade Apprentices, as per their quota against the available vacancies of U.S.L. subject to work requirement and on observance of SC/ST reservation orders. The General Manager (Ship Repair Complex) is being suitably advised in the matter.” This letter is of July 30, 1986 and a reference to the table giving year-wise appointments would show that in the year 1986, 39 ex-trade apprentices were appointed against 37 persons appointed under the scheme of compassionate appointments. Thus the Trust did exactly what was stated in this letter. 23. Thus the Trust did exactly what was stated in this letter. 23. We are unable to accept that this letter on its own or read along with the earlier communication dated January 4, 1985 constitutes an unqualified, enforceable promise or lays down a mode of recruitment on a permanent basis or creates any rights in favour of the trained apprentices. 24. Moreover, the letter does not answer the main question in the case, i.e., how could the High Court give direction for appointment of over three hundred trained apprentices regardless of the vacancy position and the other relevant considerations. Confronted with the question Mr. Krishnamani submitted that the order of the High Court should not be understood to mean that all the respondents must be appointed forthwith. The High Court asked the Trust to evolve a scheme for their absorption in a phased manner. When pointed out that if the directions of the High Court are to be understood in the way suggested by him then their will not be much difference between the High Court order and the order passed by the Chairman, Calcutta PortTrust, Mr. Krishnamani submitted the vital difference between the two was that the order of the Chairman, Port Trust sought to do away with the parity between the two groups in the matter of recruitment. He further submitted that the respondents’ main claim was to adhere to and restore the parity between the ex-trade apprentices and those covered by the scheme of compassionate appointments in the matter of recruitment. We are entirely unable to accept the claim of the respondents. As stated by the Solicitor General the ex-trade apprentices were at one time appointed in equal numbers to those appointed under the compassionate appointments scheme but the practice was not on the basis of any statutory provision or any agreement between the Trust and the workmen. We are equally unable to see any rational basis for such parity between the two groups. It might have served the interests of a certain group in the past and it may appear to the present respondents as a handy bargaining point but in the long term it will be fair neither to ex-trade apprentices nor to those coming under the scheme of compassionate appointments. It might have served the interests of a certain group in the past and it may appear to the present respondents as a handy bargaining point but in the long term it will be fair neither to ex-trade apprentices nor to those coming under the scheme of compassionate appointments. There is no comprehensible connection between the two groups nor is there any rational basis for parity between the two in the matter of recruitment. 25. On a consideration of the materials on record and the rival submissions we are of the view that the orders passed by High Court are plainly unsustainable. We accordingly set aside the orders of the High Court and dismiss the writ petitions. 26. Before parting with the records of the case we may, however, observe that though the number of appointments has gone down very low, no uniform policy of recruitment is discernible. For example three trained apprentices were recruited in 1993 and one in 1998. It is not clear under what policy those recruitments were made or for that matter what policy the Trust is following in the matter of compassionate appointments. The Trust should frame clear policies of recruitment from these categories and give them due publicity to avoid any scope of abuse and unfair labour practice. 27. In the result, the appeal is allowed subject to the aforesaid observations and directions. There shall be no order as to costs. *********** 2008(8) Supreme 534 SUPREME COURT OF INDIA (From Bombay High Court) S.B. Sinha and Cyriac Joseph, JJ. Sunitadevi Singhania Hospital Trust and Anr. — Appellant versus Union of India & Anr. — Respondents Civil Appeal No. 6704 of 2008 (Arising out of S.L.P. (C) No.10532/2008) Decided on : 17-11-2008 (a) Customs Act, 1962 – Section 129B – When certain questions are raised before the Court of law or Tribunal but not considered by it, and when it is brought to its notice, it is the only appropriate authority to consider the question as to whether the said contentions are correct or not – It has the inherent power to recall its orders – For this purpose the provisions of limitation specified in Sub-section (2) of Section 129 B would not be attracted. (Paras 20 and 21) 1980 (Suppl) SCC 420; (2005)9 SCC 331 ; 2008(8) SCALE 242 ; (2006) 3 SCC 699 – Relied upon. Facts of the case : 1. (Paras 20 and 21) 1980 (Suppl) SCC 420; (2005)9 SCC 331 ; 2008(8) SCALE 242 ; (2006) 3 SCC 699 – Relied upon. Facts of the case : 1. Appellant No.1 which is a Charitable Tust runs a hospital on no profit basis. It imported certain equipments invoking the Notification 64/88-Cus. dated 1.3.1988 issued by the Government of India in terms whereof exemption from payment of custom duty was granted in respect thereof subject to an obligation that it would reserve 10% of the beds for patients from families having a income of less than Rs.500/- per month and provision for free treatment of at least 40% of the outdoor patients shall be made. 2. An investigation was carried out in the year 1999 as to whether the appellant No.1 had fulfilled all such conditions or not. The matter went before the Customs Excise and Service Tax Appellate Tribunal, West Regional Bench at Mumbai. 3. The appeal of the appellant before the Tribunal was heard along with the cases of M/s Miraj Medical Centre W. Hospital and M/s Balabhai Nanavati Hospital. By reason of a judgment and order dated 19.1.2006, the Tribunal having held that the appellants before it had continuous obligation to fulfill the aforementioned conditions laid down under the said Notification dated 1.3.1988 and having not complied therewith the redemption fine and penalty imposed upon it by the Customs Authorities were justified. 4. High Court refused to interfere. Finding of the Court : The Tribunal failed to take into consideration that, ipso-facto, in a case of this nature provisions of Section 129B of the Customs Act as such has no effect. Result : Matter remitted back to the Tribunal. Cases referred : 1. Grindlays Bank Ltd. v. Central Government Industrial Tribunal, 1980(Suppl) SCC 420 – Relied upon. [Para 22] 2. Sangham Tape Co. v. Hans Raj, (2005)9 SCC 331 – Relied upon. [Para 23] 3. Rabindra Singh v. Financial Commissioner, Cooperation, Punjab, 2008 (8) SCALE 242 – Relied upon. [Para 24] 4. Jet Ply Wood (P) Ltd. and Anr. v. Madhukar Nowlakha, (2006) 3 SCC 699 – Relied upon. [Para 25] Advocates appeared : For the Appellants : S. Ganesh, Sr. Adv., Tarun Gulati. Neil Hildreth, Tushar Jarwal and Praveen Kumar, Advocates. For the Respondents : R.K. Abichandani, Sr. Adv., Krishna Kumar, Sanjeev Bhardwaj, B.V. Balaram Das and Mrs. Anil Katiyar, Advocates. Jet Ply Wood (P) Ltd. and Anr. v. Madhukar Nowlakha, (2006) 3 SCC 699 – Relied upon. [Para 25] Advocates appeared : For the Appellants : S. Ganesh, Sr. Adv., Tarun Gulati. Neil Hildreth, Tushar Jarwal and Praveen Kumar, Advocates. For the Respondents : R.K. Abichandani, Sr. Adv., Krishna Kumar, Sanjeev Bhardwaj, B.V. Balaram Das and Mrs. Anil Katiyar, Advocates. IMPORTANT POINT The Tribunal has inherent power to recall its order and in such case limitation u/s 129B, Customs Act is not attracted. ORDER 1. Leave granted. 2. Appellants are before us being aggrieved by and dis-satisfied with an order dated 18.1.2008 passed by a Division Bench of the High Court of judicature at Bombay dismissing the writ petition filed by the appellants herein on the ground that it was not a fit case to exercise the Court’s extraordinary jurisdiction. 3. The basic fact of the matter is not in dispute. 4. Appellant No.1 which is a Charitable Tust runs a hospital on no profit basis. It imported certain equipments invoking the Notification 64/88-Cus. dated 1.3.1988 issued by the Government of India in terms whereof exemption from payment of custom duty was granted in respect thereof subject to an obligation that it would reserve 10% of the beds for patients from families having a income of less than Rs.500/- per month and provision for free treatment of at least 40% of the outdoor patients shall be made. 5. An investigation was carried out in the year 1999 as to whether the appellant No.1 had fulfilled all such conditions or not. The matter went before the Customs Excise and Service Tax Appellate Tribunal, West Regional Bench at Mumbai. The appeal of the appellant before the Tribunal was heard along with the cases of M/s Miraj Medical Centre W. Hospital and M/s Balabhai Nanavati Hospital. 6. By reason of a judgment and order dated 19.1.2006, the Tribunal having held that the appellants before it had continuous obligation to fulfill the aforementioned conditions laid down under the said Notification dated 1.3.1988 and having not complied therewith the redemption fine and penalty imposed upon it by the Customs Authorities were justified. 7. Indisputably, appellant filed an application for rectification of mistake before the Tribunal in regard to the quantum of redemption fine and penalty. The said application was allowed. 8. An appeal was preferred against the order of the Tribunal before this Court. 9. 7. Indisputably, appellant filed an application for rectification of mistake before the Tribunal in regard to the quantum of redemption fine and penalty. The said application was allowed. 8. An appeal was preferred against the order of the Tribunal before this Court. 9. It is stated before us by Shri S.Ganesh, learned senior counsel appearing on behalf of the appellants and we have no reason to disbelieve him that one of the contentions raised before this Court was that the Tribunal had not taken into consideration the fact involved in the matter and had the same been done it could have been established that the appellant had in fact fulfilled all its obligations in terms of the said Notification. Several other points were also said to have been urged before the Tribunal. 10. This Court, presumably, on the premise that Judges’ record is final and if an apparent error has been committed by the Tribunal in not taking into consideration the contentions raised before it by the appellants, permitted it to withdraw the appeal with liberty to file an appropriate application before the tribunal, stating: “Learned counsel states that several other points had been argued before the Tribunal which have not been taken note of by it. Learned counsel states that an appropriate application shall be filed before the Tribunal and seeks permission of the Court to withdraw the appeal. The appeal is dismissed as withdrawn accordingly.” 11. Pursuant thereto or in furtherance thereof the appellant No.1 filed an application before the Tribunal purported to be an application for rectification of mistake wherein, inter alia, the following grounds were raised: “8. The appeal is dismissed as withdrawn accordingly.” 11. Pursuant thereto or in furtherance thereof the appellant No.1 filed an application before the Tribunal purported to be an application for rectification of mistake wherein, inter alia, the following grounds were raised: “8. While disposing of the appeals by a common order dated 19.1.2006, this Hon’ble Tribunal has only recorded the facts as applicable to one of the appellants, namely, the Miraj Medical Centre and has failed to appreciate the difference in facts and circumstances in the applicants case, inter-alia, as regards the following: (a) The applicants had actually reserved 10% of the hospital beds for poor and indigent persons and had advertised on several occasions the facility of free treatment to such people without means; (b) The applicants also satisfied the criteria for out patient treatment, both by giving free treatment at the hospital’s OPD as also by organizing free treatment camps, and the free treatment camps have been judicially recognised as meeting the purpose of the notification, by the Hon’ble Madras High Court in Apollo Hospital’s case, which was relied upon by the applicants in their memorandum of appeal; (c) The equipment and records were completely destroyed in the riots of 2001, which were beyond the applicants’ control; (d) In any event, the applicants being a hospital run by a charitable trust, on a no profit basis, the applicants were eligible for the exemption under Notification No.64/88-Cus. under Entries 1 & 3 alternatively. 9. The factual position being distinct and different from the main matter heard by this Hon’ble Tribunal, the Hon’ble Tribunal ought to have appreciated the difference in the facts and ordered accordingly. The non-appreciation and/ or improper appreciation of facts has resulted in an error apparent on the face of the record in the Order dated 19.1.2006. 10. The Hon’ble Tribunal has failed to appreciate that if the obligations under Entry 2 in the table annexed to Notification 64/88 is a continuing obligation, the compliance with the obligation will also be in the nature of a continuing compliance i.e. it will have to be measured over the entire useful life of the equipment and not at any periodic rests. In the applicants’ case, from the date of the import of the equipment until the destruction of the said equipment in the riots as aforesaid, the applicants have satisfied both the in-patient reservation criterion and the out patient free treatment criterion. There was, therefore, no breach of the continuing obligation by the applicants.” 12. We have been informed at the Bar that the Registry of Central Excise and Service Tax Appellate Tribunal does not entertain an application of this nature and, thus, the same was necessarily required to be labelled as application for rectification of mistake,although, in view of Prayer (a) made therein it was for all intent and purport an application for review and/or recall of the order passed by the Tribunal. 13. The Tribunal by an order dated 12.10.2007 dismissed the said application holding that the same was barred by limitation on the premise that the Tribunal’s final order was passed on 19.1.2006 and the application for rectification of mistake should have been filed within six months from the said date. It was, furthermore, opined that the Tribunal had no power to condone the delay by reason of the impugned judgment. As noticed hereinbefore, the High Court refused to interfere therewith. 14. Mr. S. Ganesh, learned senior counsel appearing on behalf of the appellants would contend that having regard to the peculiar facts and circumstances obtaining in the instant case, the Tribunal must be considered to have acted illegally and without jurisdiction in so far as it failed to take into consideration that all Tribunals had inherent power to recall their order. 15. Mr. Abhichandani, learned senior counsel appearing on behalf of the respondents, on the other hand, supported the impugned judgment. 16. Indisputably, the Tribunal considered the appeals preferred by the appellants along with the appeals preferred by two others. It has been contended before us that Dr. Balabhai Nanavati Hospital had filed Customs Appeal Nos. 61 and 62 of 2006 thereagainst before the High Court which had been allowed by an order dated 11.1.2007. 17. From the Tribunal which is the final Court of fact, an assessee is entitled to obtain a judgment wherein all its contentions have been considered. Balabhai Nanavati Hospital had filed Customs Appeal Nos. 61 and 62 of 2006 thereagainst before the High Court which had been allowed by an order dated 11.1.2007. 17. From the Tribunal which is the final Court of fact, an assessee is entitled to obtain a judgment wherein all its contentions have been considered. If what has been contended before us by the appellants, namely, it indeed had complied with all the conditions laid down in the Notification are correct and, thus, was not liable to pay any redemption fine or penalty, the Tribunal was bound to consider the said contention. 18. Apparently, learned Tribunal only considered the factual matrix involved in the case of M/s Miraj Medical Centre W. Hospital and not the factual aspect of the matter involving factual matrix. Appellants’ case had purported to have been determined on the question of law without taking into consideration the question whether the law so laid down by the Tribunal is applicable to the fact of the appellants’ case or not. 19. It is true that the period of limitation specified in terms of Sub-Section (2) of Section 129(B) of the Customs Act is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefor. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with. 20. While the judges’ records are considered to be final, it is now a trite law that when certain questions are raised before the Court of law or Tribunal but not considered by it, and when it is brought to its notice, it is the only appropriate authority to consider the question as to whether the said contentions are correct or not. 21. For the aforementioned purpose the provisions of limitation specified in Sub-section (2) of Section 129 B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. 21. For the aforementioned purpose the provisions of limitation specified in Sub-section (2) of Section 129 B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. If such an application is filed within a reasonable time and if the Court or Tribunal finds that the contention raised before it by the applicant is prima-facie correct, in order to do justice, which is being above law, nothing fetters the judges hands from considering the matter on merit. 22. We may notice that this Court in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Ors.,1 1980(Suppl) SCC 420, held that Industrial Tribunal has an inherent power to set aside an ex-parte award subject of course to the condition that the same has not been published in the Gazette. 23. Grindlays Bank Ltd.[supra] has been followed by this Court in Sangham Tape Co. v. Hans Raj,2 [ (2005)9 SCC 331 ], stating: “8. The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex parte award, but having regard to the provision contained in Section 17-A of the Act, an application therefor must be filed before the expiry of 30 days from the publication thereof. Till then the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and only up to that date, it has the power to entertain an application in connection with such dispute. 9. It is not in dispute that in the instant case, the High Court found as of fact that the application for setting aside the award was filed before the Labour Court after one month of the publication of the award. 10. In view of this Court’s decision in Grindlays Bank such jurisdiction could be exercised by the Labour Court within a limited time frame, namely, within thirty days from the date of publication of the award. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. Once an award becomes enforceable in terms of Section 17-A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days from the date of publication of the award in the gazette, the same having become enforceable, the Labour Court would become functus officio”. 24. Yet again in Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors.,3 [ 2008(8) SCALE 242 ], this Court held: “17. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict.” 25. This Court, however, in a slightly different context in Jet Ply Wood (P) Ltd. and Anr. vs. Madhukar Nowlakha & Ors.,4 [ (2006) 3 SCC 699 ] opined that even an order permitting withdrawal of a suit can be allowed to be recalled by a civil court in exercise of its inherent power. 26. It is only from that point of view this Court passed the aforementioned order dated 13.4.2007. 27. It may be true, as has been contended by Mr. Abhichandani, learned senior counsel that Section 14 of the Limitation Act, 1963 will have no application in view of the fact that provisions governing limitation are contained in the Customs Act. It is so for in a matter of this nature the Tribunal was required to consider the application filed by he appellant which was filed within a reasonable time. It should have also considered that the appellant had been bonafide pursuing its remedies before this Court. 28. We may place on record that for all intent and purport, this Court had granted liberty to the appellants to take recourse to the remedies suggested by its counsel as the word ‘accordingly’ has been used before the words ‘the appeal is dismissed as withdrawn’. 29. The Tribunal did not consider the matter on merit. The Tribunal failed to take into consideration that, ipso-facto, in a case of this nature provisions of Section 129B of the Customs Act as such has no effect. 29. The Tribunal did not consider the matter on merit. The Tribunal failed to take into consideration that, ipso-facto, in a case of this nature provisions of Section 129B of the Customs Act as such has no effect. Label of an application is not decisive for consideration by the Tribunal as to whether a case has been made out to hear the application on merit, particularly, having regard to the grounds set out therein. 30. For the reasons aforementioned, we in exercise of our jurisdiction under Article 142 of the Constitution of India set aside the impugned judgment with a direction to the Tribunal to hear out the appellants afresh on merit on the said application. 31. The appeal s allowed. There shall, however, be no order as to costs. ***********