Central Administrative Tribunal - Ernakulam
P.R. Vijayan vs Union Of India on 26 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 1108 of 2010
Monday, this the 26th day of September, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
P.R. Vijayan
Deputy Commissioner of Central Excise &
Customs (Rtd.), Puthenpurackal House
Irinjalakuda North, Trichur District - 680 125. ..... Applicant
(By Advocate Mr. C.S.G. Nair)
versus
1 Union of India
Represented by its Secretary
Department of Revenue
North Block, New Delhi - 110 00.
2 Chairman
Central Board of Excise & Customs
North Block, New Delhi - 110 001.
3 Central Vigilance Commissioner
Satarkka Bhavan, G.P.O
Complex INA, New Delhi - 110 023.
4 Commissioner of Customs (Preventive)
Central Revenue Buildings
I.S. Press Road, Cochin - 682 018. ... Respondents
(By Advocate Mr. Sunil Jacob Jose, SCGSC)
The Original Application having been heard on 15.09.2011, the Tribunal
on 26.09.11 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant in this O.A retired as Deputy Commissioner of Central Excise & Customs on 31.05.2009. While working as Deputy Commissioner of Customs at Karipur, Calicut, he had countersigned the assessment papers in respect of some consignments imported from Singapore. The CBI had filed a case C.C. No. 1/2008 in the Court of Special Judge-II for CBI cases, Ernakulam, alleging criminal conspiracy in evading customs duty with regard to import and clearance of the said consignments with the applicant as accused No.1. The charge sheet was in respect of 6 bills of entries. Meanwhile, the department has issued charge memo dated 10.11.2008 to the applicant alleging under valuation in two bills of entries which have already been included in the CBI charge sheet. Aggrieved, the applicant has filed this O.A for quashing the charge sheet in the departmental enquiry.
2. The applicant submitted that the initiation of departmental proceedings under Rule 14 of the CCS (CCA) Rules, 1965, in respect of 2 bill of entries already included in the criminal case is against the findings of the Hon'ble Supreme Court in G.M. Tank vs. State of Gujarat & Others, (2006) 5 SCC 446. Relying on the decisions of Hon'ble Supreme Court in Capt. M Paul Anthony vs. Bharat Gold Mines Limited and Another, (1999) 3 SCC 679 and Kusheshwar Dubey vs. Bharat Coking Coal Ltd. and Ors., (1988) 4 SCC 319, the applicant contended that the departmental proceedings are liable to be set aside. In as much as the facts and evidence in both the criminal and the departmental proceedings are the same, without any iota of difference the departmental proceedings should be set aside as it amounts to double jeopardy. If the disciplinary proceedings are allowed to proceed with, it will certainly affect the defence of the applicant in the criminal proceedings adversely.
3. The respondents contested the O.A. It was submitted that the charge memo is not a final order nor does it inflict any punishment upon the applicant. There is no bar to proceed simultaneously with the departmental enquiry and trial of the criminal case unless the charge in the criminal case is of grave nature involving complicated questions of law. As per the DOP&T O.M. No. 11012/6.2007-Estt.A dated 01.08.2007, the concerned authority may decide on proceeding with the departmental proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Hon'ble Supreme Court in para 22 of Captain M. Paul Anthony's case (supra). In the instant case, no complicated question of law is involved. The scope of criminal proceedings in a criminal case and the scope of disciplinary proceedings in a departmental enquiry are quite distinct, exclusive and independent of each other. The decision of the Apex Court in Capt. M. Paul Anthony's case is applicable to the said disciplinary proceedings only if the disciplinary proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of grave nature which involves complicated question of law and fact. Whereas the applicant has been booked for criminal charges under Sec. 120-B read with 13(1)9(d) of PC Act, 1988, in respect of 5 imported consignments vide bills of entries 912/04, 981/04, 1084/04, 1110/04 (in one consignment, the bill of entry is yet to be filed). The disciplinary proceedings have been initiated against him for allowing import of undervalued goods vide bills of entries 1037/04 and 1063/04, which resulted in loss to Government revenue. As the facts are not identical in the departmental and criminal proceedings against the applicant and no complicated questions of law are involved in the criminal trial, the judgement of the Apex Court in Capt. M. Paul Anthony (supra) is not applicable to the instant case. The respondents relied upon the decision decisions of the Apex Court in Delhi Cloth General Mills Limited vs. Kushal Bhan, AIR 1960 SC 806, Jang Bahadur vs. Baij Nath Tiwari, (1969) 1 SCR 134, Tukaram G. Gaokar vs. R.N. Shukla and Others, AIR 1968 SC 1050, Union of India vs. Sardar Bahadur, 1972 SLR SC 355, State of AP vs. Sree Rama Rao, AIR 1963 SC 1723 and Nand Kishore Prasad vs. State of Bihar, 1978 (2) SLR SC 46.
4. We have heard Mr. C.C.G. Nair, learned counsel for the applicant and Mr. Sunil Jacob Jose, learned SCGSC appearing for the respondents and perused the records.
5. The short question to be decided in this O.A is whether the departmental proceedings against the applicant are based on the same set of facts in the criminal case filed against him or not.
6. The applicant contended that 2 bills of entries based on which departmental proceedings are initiated are already included in the CBI charge sheet. The contention of the respondents is that criminal case has been filed against the applicant in respect of import of consignments vide bills of entries No. 912/04, 981/04, 1084/04, 1110/04 and the disciplinary proceedings against the applicant have been initiated against him for import of undervalued goods vide bills of entries No. 1037/04 and 1063/04. It implies that the bills of entries No. 1037/04 and 1063/04 are not included in the criminal case against the applicant. The criminal case CC No. 1/2008 before the Court of Special Judge-II for CBI cases, Ernakulam, 6 bills of entries are mentioned. Out of which bill of entries No. 1037/04 and 1063/04 are covered as under :
"In pursuance of the criminal conspiracy on 30.11.2004, A-7 Shri Rajkumar Mangaldas Lalwani and A-8 Shri Sunil Hariram Manyal with the intention to cheat Government of India, had submitted a falsely prepared bill of entry No. 1037/04 dated 30.11.2004 and false invoice No. 1045 dated 18.11.2004 of STD Impex Marketing (S) Pvt. Ltd., Singapore indicating an import of 100 Nos telephones, 3 Nos. EPABX and 150 Nos. bearings through A-5 Shri R.V. Manoj Kumar for clearing the import consignment. The false invoice mentioned above was dishonestly sent by A-6 Shri Alex Koshy to A-5 Shri Manojkumar. A-5 Shri Manojkumar did not indicate the brand and model of the items in the bill of entry to evade customs duty in favour of A-7 Shri Rajkumar Mangaldas Lalwani and A-8 Shri Sunil Hariram Manyal. In pursuance of the said criminal conspiracy, A-1 Shri P.R. Vijayan, DC, A-2 Shri P.V. Somasundaran and A-3 Shri M. Pratheesh, by abusing the official position, cleared the consignment as per the false declaration made by A-5 Shrin Manojkumar to evade customs duty. In the inventory prepared by A-3 Shri M. Pratheesh, he dishonestly did not indicate the brand name of the items but copied the details as given in the false invoice. A packing list to connect the actual goods imported could not be recovered from A-5 Shri Manojkumar. A-5 Shri Manojkumar sent this consignment through Jet Airways to A-8 Shri Sunil Hariram Manyal indicating his mobile number 9822074174 in the airway bill.
In pursuance of the said criminal conspiracy, on 10.12.2004, A-7 Shri Rajkumar Mangaldas Lalwani and A-8 Shri Sunil Hariram Manyal with the intention to cheat the Government of India, submitted a falsely prepared bill of entry No. 1063/04 dated 10.12.2004 along with invoice No. 1042 dated 02.12.2004 of STD Impex Marketing (S) Pvt. Ltd., Singapore without mentioning the brand through A-5 Shri R.V. Manoj Kumar in order to evade customs duty. The false invoice mentioned above was dishonestly sent by A-6 Shri Alex Koshy to A-5 Shri Manojkumar, A-1 Shri P.R. Vijayan, DC A-2 Shri P.V. Somasundaran and A-3 Shri M. Pratheesh have cleared the consignment as per the false declaration made by A-5 Shri Manojkumar. In the inventory prepared by A-3 Shri M. Prathesh, he did not indicate the brand name of the items but copied the details as given in the invoice. A packing list to connect the actual goods imported could not be recovered. A-5 Shri Manojkumar sent this consignment through Jet Airways to A-8 Sunil Hariram Manyal indicating his mobile number in the airway bill."
(emphasis supplied)
7. The impugned Annexure A-2 memorandum of charges in the departmental action against the applicant reads as under :
" ANNEXURE I ARTICLE OF CHARGE FRAMED AGAINST Shri P.R. VIJAYAN, DEPUTY COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, COCHIN Article That Shri P.R. Vijayan while working as Deputy Commissioner of Customs, Air Cargo, Calicut Airport, Karipur, during 2004 committed misconduct in as much as on 30.11.2004 and on 10.12.2004 he countersigned and cleared the imported consignments vide Bill of Entry Nos. 1037/04 dated 30.11.2004 and 1063/04 dated 10.12.2004 respectively submitted by Shri R.V. Manoj Kumar, proprietor of M/s. Welcome Exports, Calicut even though, the bills of entry and the false invoices No. 1045 dated 18.11.2004 and No. 1042 dated 02.12.2004 of M/s. STD Impex Marketing (S) Pvt. Ltd., Singapore, did not indicate the brand names and models of the goods imported by M/s. Welcome Exports and without ascertaining the exact nature of the imported goods for assessment of Customs duty. Further he was also not required to countersign the said bills of entry since the value of the goods imported were less than Rs. 1 lakh and thereby facilitated evasion of Customs duty.
That by the above acts of omission and commission, Shri P.R. Vijayan did not maintain absolute integrity and shown lack of devotion to duty, thus violating Rules 3(1) (i) and Rule 3 (1) (ii) of the CCS Conduct Rules.
ANNEXURE II STATEMENT OF IMPUTATION IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST Shri P.R. VIJAYAN, DEPUTY COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, COCHIN That Shri P.R. Vijayan, hereinafter referred as Charged Officer, (CO) was functioning as Deputy Commissioner of Customs Air Cargo Complex, Calicut Airport Karipur, during 2004. In this capacity he was authorized to counter sign on the bill of entry for having accepted the examination and assessment of imported goods for levying customs duty on the same for goods valued at Rs. 1 lakh and above.
On 30.11.2004, Shri R.V. Manojkumar, Proprietor of M/s. Welcome Exports submitted bill of entry No. 1037/04 dated 30.11.2004 and false invoice No. 1045 dated 18.11.2004 of STD Impex Marketing (S) Pvt. Ltd., Singapore indicating an import of 100 Nos. telephones, 3 Nos. EPABX and 150 Nos. bearings for clearing the import consignment. Shri R.V. Manojkumar did not indicate the brand and model of the items in the bill of entry. After examination of all the items by Shri M. Pratheesh, Inspector, he did not indicate the brand name of the items in the inventory but copied the details as given in the invoice. Shri M. Prateesh assessed the value of the goods at Rs. 24,819/- and calculated the duty at Rs. 9354/-. Shri P.R. Vijayan DC and Shri P.V. Somasundaran, Superintendent cleared the consignment as per the declaration made by Shri Manojkumar. Shri P.R. Vijayan, accepted the examination and assessment of the above consignment by overlooking the details of the goods imported and did not ensure the exact nature of the same for assessment of customs duty.
On 10.12.2004, Shri R.V. Manojkumar submitted bill of entry No. 1063/04 dated 10.12.2004 along with false invoice No.1042 dated 02.12.2004 of STD Impex Marketing (S) Pvt Ltd. Singapore, without mentioning the brand names and models indicating an import of 20 telephones, 50 telephones and 55 bearings. After examination of all the items by Shri M. Prateesh, Inspector, he did not indicate the brand name of the items in the inventory but copied the details as given in the invoice. Shri M. Pratheesh assessed the value of the goods at Rs. 13,403/- and calculated, the duty at Rs.
5,123/-. Shri P.R. Vijayan, DC and Shri P.V. Somasundaran, Superintendent cleared the consignment as per the declarations made by Shri Manojkumar. Shri P.R. Vijayan accepted the examination and assessment of the above consignment by overlooking the details of the goods imported and did not ensure the exact nature of the same for assessment of Customs duty.
That the CO by overlooking the duties and not ensuring the exact nature of the goods imported, facilitated Shri R.V. Manojkumar in the evasion of customs duty.
That, by the above acts, Shri P.R. Vijayan violated Rule 3 (1) (i) and Rule 3(1) (ii) of CCS Conduct Rules, 1964.
ANNEXURE-III LIST OF DOCUMENTS BY WHICH ARTICLE OF CHARGE FRAMED AGAINST Shri P.R. VIJAYAN DEPUTY COMMISSIONER CENTRAL EXCISE AND CUSTOMS COCHIN IS PROPOSED TO BE SUSTAINED
1) Bill of Entry No. 1037/2004 dated 30.11.2004
2) Bill of Entry No. 1063/2004 dated 10.12.2004
3) Invoice No. 1045 dated 18.11.20014 of M/s.
STD Impex Marketing (S) Pvt. Ltd.
4) Invoice No. 1042 dated 02.12.20014 of M/s.
STD Impex Marketing (S) Pvt. Ltd., Singapore.
5) Letter dated 25.01.2007 of Christopher Jacob of CID, Singapore, with enclosures.
6) Letter of Shri Danny Lum, Director M/s. STD Impex Marketing (S) Pvt. Ltd. Singapore, addressed to Shri Premkumar, ASP, CBI, Trivandrum.
7) Statements of S/Shri P. Prasad, M.P. Nazir, V.A. Gandadharan and K.P. Ravikumar.
ANNEXURE-IV LIST OF WITNESSES BY WHOM THE ARTICLE OF CHARGE FRAMED AGAINST Shri P.R. VIJAYAN, DEPUTY COMMISSIONER, CENTRAL EXCISE & CUSTOMS, COCHIN IS PROPOSED TO BE SUSTAINED
1) Shri P. Prasad, Superintendent, Customs Preventive Division, House Fed Complex, Eranhipalam, Calicut.
2) Shri M.P. Nazir, Assistant Commissioner (Technical), Central Excise ,Calicut Commissionerate, Mananchira, Calicut -1.
3) Shri V.A Gangadharan, Deputy Commissioner, Air Cargo Complex, Karipur.
4) Shri K.P. Ravikumar, Superintendent, Legal Section, Office of the Commissioner of Customs, Preventive Unit, I.S. Press Road, Cochin
5) Shri Danny Lum, Director M/s. STD Impex Marketing (S) Pvt. Ltd. 21, Lorong Ampas, Hainen Industrial Building, Singapore - 328 782.
6) Shri Premkumar, Additional Superintendent of Police, CBI, Trivandrum Unit. "
(emphasis supplied)
8. It is quite clear that the departmental proceedings against the applicant are based on bills of entries No. 1037/04 and 1063/04. The brand name of the item in the inventory was not indicated in respect of bill of entry No. 1037/04 dated 30.11.04. Again, with respect to bill of entry No. 1063/04 dated 10.12.04, the brand name of the item in the inventory was not indicated. Non indication of the brand of the items in the bill of entries is present in charge No. 1 of the charge sheet in respect of bill of entry No. 1037/04 dated 30.11.04 and bill of entry No. 1063/04 dated 10.12.04 in the criminal case. Therefore, the stand of the respondents that the bills of entries No. 1037/04 and 1063/04 are not covered in the criminal case does not appear to be factually correct.
9. In Capt. M Paul Anthony vs. Bharat Gold Mines Limited and Another, (1999) 3 SCC 679, the Hon'ble Supreme Court deduced from its decisions in Delhi Cloth General Mills Limited vs. Kushal Bhan, AIR 1960 SC 806, Tata Oil Mills Co. Ltd. vs. Workmen, AIR 1965 SC 155, Jang Bahadur vs. Baij Nath Tiwari, (1969) 1 SCR 134, Kusheshwar Dubey v. Bharat Cocking Coal Ltd, (1988) 4 SCC 319, Nelson Motis vs. Union of India, (1992) 4 SCC 711 and State of Rajasthan vs. B.K. Meena, (1996) 6 SCC 417, as under:-
"The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
In para 34 of the same judgement, the Apex Court held as under:
"There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."
(empahasis supplied)
10. When the criminal case and the departmental proceedings are based on identical set of facts, it is desirable not to proceed with the departmental proceedings as it will adversely affect the defence of the applicant in the criminal proceedings. In the instant case, it would appear that the departmental enquiry against the applicant is based on the bills of entries which are already covered in the criminal case against the applicant. The list of witnesses by whom the articles of charge framed against the applicant is proposed to be proved are S/Shri P. Prasad, M.P. Nazir, V.A. Gangadharan, K.P. Ravi Kumar, Danny Lum and Prem Kumar who have figured as W1, W5, W6, W24, W35 and W39 respectively in the criminal case.
11. Para 35 of the judgement of the Apex Court in Capt. M Paul Anthony's case (supra) is extracted as under :
"35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
In the instant case, before proceeding further with the departmental proceedings against the applicant, respondents are expected to apply their mind as to whether there is any iota of difference between the facts and the evidence in the departmental proceedings and the facts and evidence already covered in the criminal case against the applicant. The ground whether the defence of the applicant in the criminal case will be prejudiced can also be considered by the respondents. As the applicant has already retired from service, the question of throwing him out of service at the earliest, if he is found guilty does not arise. Annexure A-5 representation dated 04.06.2010 and Annexure A-8 representation dated 01.12.2010 filed by the applicant requesting to keep the departmental proceedings against him pending till the criminal case is decided by the CBI Court do not appear to have been considered by the respondents as yet. In the facts and circumstances of the instant case, it would be appropriate that the respondents consider the request of the applicant to defer the disciplinary proceedings against him till the criminal case is decided in the light of the observations made in this order and communicate their decision to the applicant and then take action as per law in the matter of the departmental proceedings against him. Ordered accordingly.
12. With the above direction, the O.A. is disposed of. No order as to costs.
(Dated, the 26th September, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.