Why can't adjudication officers write their own orders?

By Vijay Kumar

SOME time back I called on a sitting Chief Justice of a High Court. It was 7.30 pm when I went to his house. The Honourable Chief Justice had come home from the court at 6.30 pm and when I went to meet him, he had already freshened up and was doing home work - dictating to his stenographer.

Judges - from the lowest courts to the Supreme Court - make their own orders, Members of the Tribunal make their own orders but there is a distinguished group of adjudicators who do not make their own orders - the quasi judicial officers of the Customs and Central Excise department. These officers have more facilities than judges and have an army of assistants and that precisely must be the reason, why they don't write their own orders.

The story of order-making in the department is quite interesting. Let us start at the beginning. An adjudication order by an Assistant Commissioner/Deputy Commissioner is usually written by the Adjudication Superintendent or the Technical Superintendent. Sometimes the boss is so very busy that these Superintendents find it very difficult to get his signature on the file and the order. If the Assistant Commissioner has not finished his quota of orders for a month, this Superintendent is taken to task. Many of the Assistant Commissioners don't even read the orders prepared by their Superintendents. They have a quick glance at the 'order portion'. This order portion is normally a oneline order confirming the demand. These adjudicating officers are required to give 'speaking orders'. It would be a great favour to this country if they can give at least 'reading orders'.

To continue with our saga of adjudication orders, this order of 'The Assistant Commissioner' is reviewed by the Commissioner. If the Assistant Commissioner does not bother to write his own order, will a Commissioner who has put in 25 years of 'service' write his own orders? Why should he? There is another Supdt in the review section of the Commissionerate who will write the review order. (The review farce a little later). The case goes to Commissioner (Appeals) where yet another Supdt writes the appellate order. In the case of an original order passed by Commissioner, the story is similar. Commissioner being Commissioner has better facilities and more Adjudication Superintendents who are expected to do a better job than divisional superintendents. They are required to place relevant case law in files and folders and flag them properly to give a good impression. The Commissioner's orders are supposed to be reviewed by the Board, but in fact they are reviewed by the Chief Commissioner, rather more accurately by a superintendent in the Chief Commissioner's office. Even the Board is not above board in this farce. A superintendent in the Chief Commissioner's office writes the review order, an AC and an Additional Commissioner correct the spelling and grammar mistakes and finally the file is put up to the Chief Commissioner who also makes some spelling corrections and a 'draft review order' is sent to the Board and in most cases the draft review order comes back with a few commas changed and with the signature of the Board Member and that is the Board review order which is the basis for an appeal to the Tribunal.

Incidentally review means only review of orders against the Government. Orders in favour of revenue are not even sent to the Board. Why this farce? If Board members are too busy that they cannot review the orders, why can't this job be delegated to the Chief Commissioners? In any case it is done by a Superintendent. In Commissionerates also orders favourable to revenue are never reviewed. The superintendent recommends that the order is in favour of revenue and so may be accepted and it is invariably accepted. If favourable orders are not to be reviewed, do you need a Commissioner, Chief Commissioner and Board Member to do it? A Sepoy can as well do the job.

If adjudication is all about one superintendent writing an order, another superintendent reviewing it and yet another superintendent writing an appellate order, do we need all this paraphernalia and so many adjudicating officers? The fact that these orders are written by superintendents is so well accepted that you can actually overhear in parties, conversation among adjudicating officers, like, ' you are a lucky fellow, your adjudication superintendent is very good; mine is stupid, he can't write a decent order!' Even superintendents accept this fact. A review superintendent will never blame an adjudicating authority for a bad order, he will blame his counterpart superintendent for writing a shabby order. It is not that superintendents are great order writers or anything remotely like that; this job used to be done by Inspectors earlier. Now that inspectors are in short supply, the job has been handed over to the superintendents.

It is only Assistant Commissioner and above who are expected to pass adjudication orders and they are supposed to be officers with sufficient seniority, maturity and knowledge. Then why can't they write their own orders? If a High Court Chief Justice or a Tribunal Member can write his orders why can't these adjudicating authorities write their orders?

The culprit perhaps is the superintendent. If the Tribunal can manage without a superintendent, the Commissioner or AC should as well.

The department knows very well that an order written by a superintendent is not valid in law, but they have a way to circumvent the law. When the proxy order is put up to the boss for his signature, the superintendent makes a remark, 'order as dictated, put up for signature' and the boss has no qualms about signing the order that he had never dictated.

It must be said here that not all adjudicating officers get their orders written by their superintendents. There are many diligent officers who will at least read their 'own' orders prepared by their subordinates. I know a Commissioner who types his orders from beginning to end and he doesn't even know typing. He would type long orders with two fingers with extracts from the Show Cause Notice, the party's reply and then giving his findings. He says by typing out the main points from the Show Cause Notice and reply, he understands the case completely and then it is easy for him to decide. But such commissioners are rare. There is another Commissioner whose orders are rich in variety and each order is unique in style and content because he distributes all his orders among all the superintendents in the Headquarters and each superintendent is required to give him an order a week. His adjudication targets are easily met. Then there was the classic case of a Commissioner who passed two orders on the same day on the same issue but in respect of two different parties. One was in favour of revenue and the other against. These two orders were put up by two different superintendents each not knowing what the other had done!

It scarcely lies in the mouth of the taxpayer who plays with fire to complain of burnt fingers. - Lord Greene