Central Administrative Tribunal - Bangalore
Shrikanthapoojary vs Revenue on 16 August, 2024
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O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NOs.170/00172/2024
& 170/00173/2024
DATED THIS THE 16th DAY OF AUGUST, 2024
Order Reserved on: 19.7.2024
Date of Order: 16.08.2024
CORAM:
HON'BLE MR. JUSTICE B.K SHRIVASTAVA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
O.A 170/00172/2024
Sri.Ashwin N.V
S/o.Naveen Kumar
Aged about 39 years
w/a, Head Havaldar
Central Excise and Central Tax (GST)
North Division, C.R.Building, Attavara
Mangaluru - 575 001 ...Applicant
(By Advocate: M/s.Paanchajanya Associates)
Vs.
1. Union of India represented by its Secretary
The Ministry of Finance, Department of Revenue
Central Board of Indirect Taxes, North Block
New Delhi - 110 001
2. The Principal Chief Commissioner of Central Tax
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O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
Bengaluru Zone, P.B No.5400
C.R.Building, Queens Road
Bengaluru - 560 001
3. The Commissioner of Central Excise
and Central Tax (GST)
7th Floor, Bunts Hostel Road
Mangalore - 575 003 ......Respondents
(By Advocate Shri.Vishnu Bhat for R 1 to 3)
O.A 170/00173/2024
Sri.Shrikantha Poojary
S/o.Govinda Poojary
Aged about 35 years
w/a, Head Havaldar
Office of the Deputy Commissioner
Central Excise and Central Tax (GST)
Moodanidamboor Village, IV Cross, 28th
Bannaje ward Vishveshwarayya Nagar
Bannaje, Udupi - 576 101 ...Applicant
(By Advocate: M/s.Paanchajanya Associates)
Vs.
1. Union of India represented by its Secretary
The Ministry of Finance, Department of Revenue
Central Board of Indirect Taxes, North Block
New Delhi - 110 001
2. The Principal Chief Commissioner of Central Tax
Bengaluru Zone, P.B No.5400
C.R.Building, Queens Road
Bengaluru - 560 001
3. The Commissioner of Central Excise
and Central Tax (GST)
7th Floor, Bunts Hostel Road
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O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
Mangalore - 575 003 ......Respondents
(By Advocate Shri.Vishnu Bhat for R 1 to 3)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
These two Original Applications have been filed under Section 19 of the Administrative Tribunals Act 1985.
2. As the issues in these two Original Applications are similar in nature and are challenging similar orders, these Original Applications have been heard together and are being disposed of through a common order. For the sake of convenience, O.A No.173 of 2024 is taken as the main case. The relief sought in O.A 173/2024 are as follows:
"i) Call for the entire records.
ii) Quash and set-aside the impugned orders bearing No.GCCO/VIG/MISC/250/2021-VIG & 2/2021/IG/COMMISSIONER, passed by the Respondent No.2 & 3, dated nil & 8.9.21 at Annexure A-45 & A -49, as the same is unjust arbitrary and contrary to rules and the law laid down by the Hon'ble Supreme Court.
iii) To issue a Writ of Mandamus directing the respondents to consider the claim of the applicant 4 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE to issue CCTV footages in the first place and also to consider the no confidence motion made against the Enquiry Officer as per the representations dated 20.07.2021 & 4.8.2021 vide Annexures A 39 & A 40 respectively in accordance with the law.."
3. The brief facts as stated in the Original Application of the applicant is that the applicant in the instant case is aggrieved by the Appellate Authority's order where the appeal preferred by the applicant has been mechanically rejected by upholding the order of the Commissioner, without consideration of the various legal contentions raised by him, in the exhaustive Appeal. As the Disciplinary Authority had not at all acted in accordance with the rules and also the inaction on the part of the Enquiry Officer is an indication of the sheer bias and prejudice against the applicant contrary to the law; and in absence of any order, let alone a speaking order with any reasons whatsoever to justify the same in a manner known to law or under the CCS CCA Rules.
4. The applicant submits that while he was working as Head Havildar of Central Tax, Mangaluru CGST Commissionerate, on 24.12.2019, a Charge Memorandum came to be issued alleging inasmuch as 6 charges against the applicant. The applicant filed an 5 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE exhaustive reply to the said Charge Memorandum vide his letter dated 3.2.2020 (Annexure A-2) pleading that he is innocent and the inquiry may be dropped to meet the ends of justice and equity.
5. The applicant asserts that the Inquiry Officer despite initial enthusiasm, when did not evince interest to see that the documents sought by the applicant is furnished to him to defend effectively in the enquiry proceedings, the applicant having left with no other alternative, made an application under Right to Information Act on 20.1.2021 through his Defense Assistant. The applicant made a detailed application clarifying the legal position in terms of CCS Rules, the Office Memorandum, paragraph 9 referred by the Enquiry Officer, the judicial pronouncements and also the similar document given by the same department to a similarly situated person in his representation, and once again sought the same in accordance with the law and parity vide his letter dated 6.7.2021.
6. He further says that in response to the same the Inquiry Officer communicated the applicant herein that the Commissioner has fixed a personal hearing and accordingly asked the applicant to attend to it through his communication dated 26.8.2021. Then the applicant was 6 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE surprised of such a communication, made a communication on 3.9.2021 to the Commissioner, explaining that he should not interfere in the matter as it is in the domain of the Disciplinary Authority who is appointed the Inquiry Officer and as such his interference would be transgression of his jurisdiction under the law and accordingly sought to refrain himself from interference in this regard.
7. The applicant asserts that unfortunately, the Commissioner was not inclined to examine the aspect of jurisdiction etc., raised by the applicant, as he was very much interested in interfering in the matter and accordingly made an order rejecting and also setting aside the complaint of the applicant made to the CVC without citing any authority for the exercise of the same on 8/9 of September 2021.
8. Then the applicant preferred a detailed appeal on 20.9.2021 to the Principal Chief Commissioner challenging the impugned order passed by the Commissioner. Then the appeal filed by the applicant was dismissed by the Principal Chief Commissioner vide his order dated nil which is impugned herein as Annexure A-49. 7
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
9. Based on these facts, reliefs claimed on various grounds taken in paragraph 5 running from sub paragraphs 1 to 57 with different contentions/paragraphs and the applicant prays to allow his O.A and to grant him all relief.
10. On notice, the respondents have filed their reply statement.
11. No rejoinder has been filed.
12. The Original Applications came up for final hearing on 19.7.2024. Shri.L.Mahesh for the applicants and Shri.Vishnu Bhat for the respondents were present and heard.
13. We have carefully gone through the records and considered the rival contentions of both parties.
14. The main relief claimed can be classified into two parts:
First one relates to quash and set-aside the impugned orders of respondent nos.2 and 3 dated nil and dated 8.9.2021 respectively, which are at Annexures A-45 and A-49 as the same are unjust, 8 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE arbitrary and contrary to rules and the law laid down by the Hon'ble Supreme Court.
The second one relates to issue a direction to the respondents to consider the claim of the applicant to issue CCTV footages in the first place and also to consider the no confidence motion made against the Inquiry Officer as per the representations dated 20.7.2021 and 4.8.2021 vide Annexures A-39 and A-40 respectively in accordance with law.
The second part of the relief relates to the first relief as pursuant to these two representations the impugned orders were passed by respondent nos.2 and 3.
15. To understand the case better, let us first try to understand the representation of the applicant dated 20.7.2021, which is at Annexure A-39 at page no.139 to 141. The letter is from the applicant Shri.Shrikantha Poojary, the charged officer to Shri.Manoj Kumar.N, the Superintendent of Central Tax and Central Excise & Inquiry Officer, North Division, C.R.Building, Mangalore. The subject is shown as 'Request to keep inquiry proceeding pending - reg.'. In paragraph 2, the said document mentions the following: 9
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE " 2. In this regard this is inform that I have already submitted application to Central Vigilance Commission expressing no confidence in IO and disciplinary authority citing all the available evidence and reasons."
16. Simple reading of this shows that the applicant has purported in the said document that he has submitted application to the C.V.C expressing no confidence in Inquiry Officer and the Disciplinary Authority.
17. In paragraphs 3 and 4 of the said letter, the applicant speaks of CCTV footages which he himself considers to be relevant to prove his innocence. In paragraph 5, he wants to mention that a person who is required to answer a charge must understand its context and to justify his defense and cross examination etc. and to prove evidence of his innocence, he needs the said documents and that the rules of natural justice should be followed in the disciplinary cases.
18. In paragraph 6, again he emphasized the rules of natural justice in conduct of enquiry.
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O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
19. In paragraph 7, he mentions that his request for additional document which was submitted in the month of December 2020 had not been acted upon by the respondents. Hence, he wants to say that because of that there was violation of natural justice and the enquiry conducted so far was biased and not impartial.
20. He further says in paragraph 8 that the Inquiry Officer has acted as per the directions of the Disciplinary Authority and DRI and so he has lodged a complaint to the Central Vigilance Commission and so he does not want to continue the inquiry unless this issue is resolved and to keep the inquiry pending till the CVC conducts inquiry on this issue and takes a decision.
21. From the simple reading of the said representation shows that in paragraph 2, the complaint is against both the Inquiry Officer as well as the Disciplinary Authority which is factually different than what he wants to say in relief no.iii which reads as follows:
" to issue a Writ of Mandamus directing the respondents to consider the claim of the applicant to issue CCTV footages in the first place and also to consider the no confidence motion made against the Enquiry Officer as per the representations dt. 20/.7.2021 & 4.8.2021 vide 11 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Annexures A39 & A 40 respectively in accordance with the law."
22. Simple reading of the above shows that now before this Tribunal he wants to impeach the conduct of Inquiry Officer and bringing a motion against him and he has forgotten that in the past document of Annexure A-39 dated 20.7.2021 with the subject of 'Request to keep inquiry proceeding pending - reg. ', the applicant had impeached the conduct of both Inquiry Officer and the Disciplinary Authority and he implied that he had written something to the C.V.C.
23. Another critical aspect of this document is that it does not enclose any relevant provision of law/rules or regulation under which such an application could have been filed before the CVC, and as to why if such a representation was there before the CVC, the statutory role of the Disciplinary Authority and Inquiry Officer to enquire into the matter was excluded. And we do not find any evidence supporting claim which may justify the applicant's claim that why the authorities should keep the inquiry pending till the CVC takes action on his reference. We do not find any substantiation of these and there is no disclosure of these grounds in the said document. 12
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
24. Secondly, he mentions of his letter dated 4.8.2021 which is at Annexure A-40 which is again a letter from Shri.Shrikantha Poojary, the charged officer to the Additional Commissioner, Central Excise and Central Tax (GST) and Disciplinary Authority with a subject 'Request to stop the further proceedings- reg.' Here he says to please refer to his earlier letter dated 20.7.2021 submitted to the Inquiry Officer wherein he had expressed no confidence in the Inquiry Officer and despite that the Inquiry Officer was trying to complete the inquiry without giving proper opportunity to defend himself , forcing him to attend by issuing letter dated 2.8.2021. He want to further state that the Inquiry Officer was quasi-judicial authority who is not supposed to be representative of the department/disciplinary authority/government and that the Inquiry Officer has denied the vital evidence to defend himself based on the direction received from the Disciplinary Authority who is in turn directed by the DRI not to supply the copy of the CCTV footages despite successfully rebutting the grounds cited by him.
25. He further says that the competent authority has to take a decision to continue the incumbent Inquiry Officer or replace him 13 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE with another and until the decision is taken by the competent authority, the inquiry proceedings cannot continue as it vitiate the entire proceedings and to direct the Inquiry Officer to wait for the decision of the competent authority. Based on this, he was asked to appear before the Commissioner as he had written vide Annexure A- 44 dated 3.9.2021. In paragraph 2, he wants to say that as per rule, the Disciplinary authority for group C is the Additional/Joint Commissioner and the appellate authority is the Commissioner and that he has not filed any appeal before the Appellate Authority and that the Disciplinary Authority has not passed any order in original on the issue.
26. He, in effect, wants to question as to why the Commissioner has given a personal hearing to him in the absence of any appeal from him. He asserts that the Commissioner in his case is the Appellate Authority, and was not empowered to exercise any original jurisdiction especially when the disciplinary authority is appointed. The appellate authority cannot exercise the power of the original authority in the absence of any such power vested with the appellate authority under the CCS (CCA) Rules, 1965. He further asserts that the practice of higher authority exercises the power of lower 14 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE authorities in administrative matters is not available under CCS rules. He asserts that he had quoted various grounds for showing no confidence against the Inquiry Officer. He further argues that the appointment of Commissioner as original authority is to be made in terms of Rule12(4)(a) of CCS(CCA)Rules,1965 by the CBIC and without such appointment, any order passed by the Commissioner on the issue which falls under the jurisdiction of the disciplinary authority is illegal.
27. He wants to say that in respect of the disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965, it is mandatory that oral evidence is recorded in the regular inquiry in the presence of the charged employee who is given full and effective opportunity to cross-examining the witness. Even in cases where an ex-parte hearing is held, it is essential that a statement is duly recorded/affirmed in the regular hearing. And despite the Board direction, the IO sent him out of the room and closed the door and recorded the statement of Shri.Ganesh Hegde for three hours by disclosing the depositions of all witness and that he refused to sign the daily order sheet and submitted protest letter on the same day and the statement was not affirmed in the regular hearing held and the IO was recorded deposition of other witnesses in his absence and the deposition of witnesses including 15 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Shri.Ganesh Hegde is not given to him so far. And that the Inquiry Officer interacted with the witnesses asking the leading question and trying to influence and bulldoze the witness. The passenger who is also a witness was taken out of the room and was advised change his disposition even after he signed the document. The Inquiry Officer always acted on the advice of the DRI and Disciplinary Authority and never asked independently. The copy of the CCTV footages was denied only on the basis of the letter received from the DRI. He argued that personal hearing may be treated as informal talk and that Commissioner being the Appellate Authority has no jurisdiction on the issue of no confidence against the IO which falls under the jurisdiction of Disciplinary authority.
28. Subsequently, based on this inquiry or personal hearing (PH) the Commissioner of Central Excise and Central Tax has passed one of the impugned order dated 8.9.2021 with a subject 'No confidence in Inquiry Officer and Disciplinary Authority- reg.' It is a detailed order annexed as Annexure A-45 from page 151 to 155. The most relevant part of the said order is: 16
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE " 4.8. The CO in his written submissions at the time of personal hearing, has stated that he had neither filed any appeal before the Appellate Authority nor has the Disciplinary Authority passed any order in Original and that Additional/Joint Commissioner is the Disciplinary Authority for Group C and the appellate authority is the Commissioner. He has concluded his submissions by stating that the Commissioner being appellate authority has no jurisdiction on the issue of no confidence against the IO which falls under the jurisdiction of Disciplinary authority. This contention appears to be mischievous and misleading, as the CO appears to be changing his stand of no confidence as and when it suits him.
When the proceedings are not as per his liking he chooses to show no confidence against IO and in a further bid to delay the proceedings, has also gone to the extent of showing no confidence against the DA in his letter dated 2.8.21 addressed to the undersigned. Since he has vide letter dated 16.7.2021 expressed his no-
confidence in the IO and DA in his letters to the Central Vigilance Commission as per para 17 of the Handbook for Inquiry Officer and Disciplinary Authority by Institute of Secretariat Training and Management (Department of Personnel & Training) Ministry of Personnel Public Grievances & Pensions, the procedure prescribed therein was required to be followed by the IO. However, it appears that the Charged officer refused to attend the hearing and informed him that he would not appear before him as they have expressed no-confidence. In view of the above as per the CCA(CCA) Rules, 1965 (II)- the department of Personnel & Administrative Department OM No.39/40/70 Estt (A) dated 9/11/72 inter alia, provides that wherever an application is moved by a Govt.Servant, against 17 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE whom disciplinary proceedings are initiated, against the Inquiry Officer on grounds of bias, the proceedings should be stayed and the application referred to the appropriate reviewing authority for considering the matter and passing appropriate orders thereon. In the view of this the hearing has been held by the undersigned. "
29. Further, the finding of the Commissioner is that he find that the charged officer in his complaint/appeal to the CVC stated that the statement he made that he lost confidence in both I.O and Disciplinary Authority during the personal hearing he had expressed no confidence against I.O, and he is silent about the Disciplinary Authority if he has no confidence in the same he should have brought forward the same at the time of personal hearing.
30. At page 130 of the O.A, Annexure A-34 is the joint letter from the applicant with another charged officer to the CVC with a subject that 'complaint against the Disciplinary and Inquiry Officer' which is dated 16.7.2021. Clearly, the said letter shows no confidence against the IO and the Disciplinary Authority; whereas before the Appellate Authority, the applicant was trying to restrict his no- confidence against the Inquiry Officer which we also find factually incorrect. And we further find that in this Original 18 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Application before us also, in the relief column and other parts, the applicant has only emphasizes no confidence against the IO and has tried to avoid his earlier allegations against the Disciplinary Authority.
31. Because of these contradictions, the Disciplinary Authority in his order dated 8.9.2021 in order No.03/2021/VIG/Commissioner with a subject 'No confidence in IO and Disciplinary Authority-reg' the Appellate Authority has quoted in his para 4.5 (rightly) that from the foregoing paragraphs, there is no consistency in what the CO is stating as he had initially expressed no confidence against both IO and DA while making an application to the CVC vide letter dated 16.7.2021 and letter dated 30.7.2021 addressed to the Commissioner. However, he had chosen to be silent about no confidence against DA in his subsequent letters and had only informed the DA that had brought no confidence against IO.
32. In paragraph 4.8, the Commissioner concludes that these type of contradictory contentions appears to be mischievous and misleading as the CO appears to be changing his stand of no confidence as and when it suits him. We after perusing and comparing various documents before us, also confirm the finding of the 19 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Commissioner which is conclusively borne by the record that the charged officer is quite inconsistent in his allegations in various documents and that when the proceedings are not as per his liking he chooses to show no confidence against IO and further bid to delay the proceedings also expresses no confidence in Disciplinary Authority and at some later stage only emphasized his first allegation against the IO, and argued with the appellate authority that his personal hearing was illegitimate as his no confidence was only against the IO, so it should have been inquired by the Disciplinary Authority and not the Commissioner, who was the appellate authority. Unmistakenly the applicant had also no confidence against the DA in his letter dated 2.8.2021 addressed to the Commissioner. The Commissioner has given reasoning in detail in paragraph 4.8 of his letter dated 8.9.2021 as to why the hearing had to be held by him as there is no confidence against both the IO as well as the Disciplinary Authority and the paragraph is already quoted in paragraph 28 of this order.
33. We are convinced by the conclusion of the Commissioner. As indeed, the applicant had expressed by his various written communication to various authorities expressing no confidence in Inquiry Officer and Disciplinary Authority. Hence, the higher 20 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE authority the Commissioner who is the Appellate Authority in the case directly heard him and after interacting with him, and examining the records have passed the speaking and reasoned order so that inquiry proceed expeditiously without any impediment. The Commissioner has passed the following order:
"ORDER In view of the above, the Charged Officer's no- confidence against the Inquiry Officer and the Disciplinary Authority merits rejection and is set-aside. The Inquiry Officer is directed to continue with the Enquiry and the Charged Officer to appear for the same. "
34. From the conduct of the applicant and in changing his versions in different written communications, which are before us, in this file as well as in the O.A itself in various paragraphs and in the relief, we are also convinced by the conclusions of the Commissioner that the charged officer is trying to create confusion and to procrastinate the disciplinary proceedings changing his version. We are unable to find anything wrong, when no confidence was there against the Inquiry Officer and the Disciplinary Authority, that the Appellate Authority directly heard the case. Hence, we cannot find any primary ground for interfering with the order of the Commissioner dated 8.9.2021 with the subject 'No confidence in Inquiry Officer and Disciplinary Authority- reg' which is impugned hereby.
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O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
35. Further, the said order, is challenged before the Principal Chief Commissioner of Central Tax, Bengaluru Zone who has examined and considered the order of the Commissioner Shri.Imamuddin Ahmad of Central Excise and Central Tax (GST) dated 8.9.2021 which was inter-locutory in nature and it quotes as follows:
"Order Shri.Shrikanth Poojary, Head Havaldar of Central Tax, Mangaluru CGST Commissionerate has filed an Appeal dated 20.9.2021 addressed to the Principal Chief Commissioner of Central Tax, Bengaluru Zone aginst the order in original No.03/2021/VIG/COMMISSIONER dated 8.9.2021 issued by Shri.Imamuddin Ahmad, Commissioner of Central Tax, Mangalore CGST Commissionerate, in a case of complaint of no-confidence against Inquiry officer and Disciplinary Authority in the disciplinary proceedings initiated against him vide Charge Memorandum C.No.II/10-A/03/2018 dated 24.12.2019 issued u/r 14 of CCS (CCA) Rules, 1965 on grounds of bias.
2. In the instant case, the Order in Original No.03/2021/VIG/COMMISSIONER dated 8.9.2021 issued by Shri.Imamuddin Ahmad, Commissioner of Central Tax, Manglore CGST Commissionerate is interlocutory in nature wherein it was held that, 'If at all the CO had any grievance against IO, it should have been communicated immediately after his appointment as provided for in the Vigilance Manual and not at the time when the proceedings are in the final stages. The CO is clearly resorting to dilatory tactics. The application made by CO to CVC was also set aside, since CVC has jurisdiction only over the matter related to Group 'A' officers and consequently CO's demand for change of DA is also set aside.' Further vide the said Order-in-Original, the CO's no confidence against the Inquiry Officer and the Disciplinary Authority was also rejected and set aside. The Inquiry Officer has also been 22 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE directed to continue with the inquiry and the Charged Officer has been directed to appear for the same.
3. In terms of Rule 22 of the CCS (CCA) Rules, 1965, there is no provision for filing an appeal against any order of an interlocutory nature, including in cases of bias, which can only be decided by DA. Further, the application filed by Shri.Shrikanth Poojary with CVC had been forwarded to Director General of Vigilance, and they, vide their letter dated 31.12.2021, had communicated that no action lies at the end of Director General of Vigilance.
4. I also find that the findings in the case have already been decided by the Commissioner, who is the reviewing authority in the case, and thus, in any case, the other submission made the Sh.Poojary regarding DOPT O.M dtd. 9th Nov. 1972 also does not stand.
5. In view of the above, I conclude that no appeal lies against the Order-in-Original No.03/2021/VIG/COMMISSIONER dated 8.9.2021 issued by Shri.Imamuddin Ahmad, Commissioner of Central Tax Mangalore CGST Commissionerate in terms of Rule 22 of the CCS (CCA) Rules, 1965 with the undersigned. Accordingly, the appeal filed by Shri.Shrikanth Poojary is held to be infructuous in terms of CCS (CCA) Rules, 1965, and is dismissed.
6. The Inquiry Officer should resume with the inquiry immediately and the Charged Officer Shri.Shrikanth Poojary, Head Havaldar is also directed to participate in the same.
7. The representation/appeal made by Shri.Shrikanth Poojary, Head Havaldar of Central Tax, Mangaluru CGST Commissionerate accordingly stands disposed.
(ROOPAM KAPOOR) PRINCIPAL CHIEF COMMISSIONER OF CENTRAL TAX BENGALURU CGST ZONE, BENGALURU To Shri.Shrikanth Poojary Head havaldar of Central Tax Mangaluru CGST Commissionerate "23
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
36. We have critically seen the above order, and we also do not find any disagreement with the Principal Chief Commissioner's conclusions. The very conclusion in paragraph 3 is that in terms of Rule 22 of the CCS (CCA) Rules, 1965, there is no provision for filing an appeal against any order of an interlocutory nature, including in cases of bias, which can only be decided by DA. Further, the application filed by Shri.Shrikantha Poojary with CVC had been forwarded to Director General of Vigilance, and they, vide their letter dated 31.12.2021, had communicated that no action lies at the end of Director General of Vigilance. He further records that the finding in the case had already been decided by the Commissioner who is the Reviewing authority in the case and in any case, the other submission made by the charged officer regarding DoP&T O.M dated 9.11.1972 also does not stand. In view of the above, the Principal Chief Commissioner of Central Tax concludes that no appeal lie against the order of 8.9.2021 issued by the Commissioner of Central Excise and so appeal filed is held to be infructuous in terms of CCS (CCA) Rules, 1965 and is dismissed. The Principal Chief Commissioner directed the Inquiry Officer to resume the inquiry immediately and the charged officer is also directed to participate in the disciplinary proceedings. 24
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37. We find that these conclusions are speaking as well as with reasons and after due process. We have gone through the provisions of Rule 22 of the CCS (CCA) Rules, 1965 which reads as follows:
"PART VII APPEALS
22. Orders against which no appeal lies Notwithstanding anything contained in this Part, no appeal shall lie against-
(i) any order made by the President;
(ii) any order of an interlocutory nature or of the nature of a step-in-aid of the final disposal of a disciplinary proceeding, other than an order of suspension;
(iii) (iii) any order passed by an inquiring authority in the course of an inquiry under Rule 14 "
Simple reading of the above rule shows that notwithstanding anything contained in this Part, no appeal should lie against any order of interlocutory nature of a step in aid of the final disposal of a disciplinary proceeding, other than an order of suspension and any order passed by an Inquiring Authority in the course of an inquiry under Rule 14. Clearly, the conclusions of the Commissioner is in consonance with this Rule and the applicants have failed to show any provision under which their case would lie.
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38. We also find that within the Department there were other relevant authorities up to the Board, but certainly not for Group C officer, CVC was the authority where the applicant has sent his reference and trying to take a plea that till the CVC disposes his petition, the inquiry should not be proceeded with. The applicants have failed to show us any law/rule/regulation or citing in their favour which may substantiate that mere any reference and letter to CVC would give him any right to abstain himself from participating in disciplinary inquiry which is lawfully instituted and being conducted. We do not find any prima-facie issue in the order of the Principal Chief Commissioner of Central Excise dated nil which is at Annexure A-49 , File No.GCCO/VIG/MISC/250/2021-VIG date: as approved.
39. Although there are no primary grounds for the interference with the said two impugned orders as another unrelated issue raised in the O.A and in the relief (iii) is to direct the respondents to consider the claim of the applicant to issue CCTV footages in the first place and also to consider the no confidence motion made against the Enquiry Officer as per the representations dated 20.7.2021 and 4.8.2021 vide Annexures A39 & A 40 respectively in accordance with the law. We 26 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE are unable to find this to be relevant at this stage. And to express any opinion on the relevancy of CCTV footage at this stage may prejudice the whole inquiry. That issue is something which has to be considered by the disciplinary authority and it can be agitated in the O.A at the stage of challenging the penalty order and other subsequent orders. Deciding on what evidence to be taken for substantiating a case vests with the Disciplinary Authority and other authorities as under CCS (CCA) Rules 1965. They may or may not rely on a specific document, a specific CCTV footage and whatever they rely they have to make available the same to the charged officer so that he is able to defend his case in a fair way.
40. At this pre-mature stage, we cannot come to any conclusion of relevancy of the CCTV footage and force unilaterally the Department to take decision as requested by the applicant. The respondents are free to rely any specific evidence which they may or may not would like to rely. We have gone through the charge memorandum under Rule 14 of CCS (CCA) Rules, 1965 dated 24.12.2019 which are in Annexure A-1, Annexure 1 is the Articles of Charges framed against Shri.Shrikantha Poojary, Annexure II is the statement of imputations in support of articles of charge framed against the charged officer and 27 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Annexure III is the list of documents by which the above articles of charge against the CO are proposed to be sustained which has 66 items as listed, but the applicant has failed to point out which item pertains to specifically related to issue of CCTV footage. And in the absence of any such specific item in the said Annexure III, it is left with the respondents to decide on the matter as to its relevancy or otherwise and we cannot give any specific opinion or direction to them about the same at this stage. Annexure IV is the list of witnesses by whom the above articles of charge against the CO are proposed to be sustained, which has a list of 26 witnesses.
41. We also noticed that the Articles of Charges are extremely serious which cannot be trivialized. The Articles of charges pertains to smuggling of gold weighing 1515.270 grams valued at Rs.46,82,184/- brought by one passenger. The applicant is alleged to have facilitated in successful gold smuggling approximately 60 times by collecting remuneration of Rs.25,000/- to Rs.40,000/- per successful smuggling activity, and was found in possession of Rs.24,96,500/- cash at his residence during his house search. Hence there is need for expeditious conduct of inquiry and completion of inquiry and taking it to its logical conclusion so that either way if the charged officer is found to 28 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE be not guilty, will be exonerated and if found guilty, imposed with the penalty as per rule. Hence there is no other way for the applicant, but to participate in the disciplinary proceedings and co-operate so that the inquiry will be completed early. We do not find any irregularity at this stage with the Inquiry Officer. If the charged officer has any further grievance, he may raise the same before the appropriate authority in the department and when he challenges the Disciplinary Authority's order and other appellate and revisional authority's order at appropriate time and not by shooting unwarranted interlocutory petitions to various authorities, which may not be rightfully pertaining to their assigned domain. We have gone through the voluminous grounds for relief with the legal provisions in paragraph 5 having 57 purported grounds and to us they all appear to be either unsatisfactory or pre-mature for following reasons.
42. In 5(A)1, the applicant wants to assert that charges levelled against the applicant is very vague and unspecific as there was no specific commission or commissions on the part of the applicant in clear terms and that the charge memo do not have any imputation of misconduct leveled against the applicant as required under the rules and that same is a mere repetition of the very charges itself. He says 29 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE that for this reason alone, the inquiry to be conducted and the said charge memo do not contain the statement of the imputations and he wants to conclude that the charge memo is an outcome of an act of bias and prejudice by the disciplinary authority from the very inception.
We are unable to understand this reasoning and how this is related to the two impugned orders and his letters to CVC and other letters regarding no confidence against the Inquiry Officer as well as the Disciplinary Authority. In the relief column, at 8(iii), he speaks about no confidence against the Inquiry Officer, but in this paragraph he speaks about bias and prejudice against the Disciplinary Authority. By this type of his own statements which are contradictory, the applicant is making his case weaker and weaker and the only conclusion can be that he wants to put up grounds for relief with legal provisions by putting forth irrelevant matters so that the Court is flooded with facts and confused and lost of focus, which will ultimately procrastinate the whole process of inquiry. Hence, we have no doubt in our mind that this paragraph has no substance in it with reference to relief claimed.
30
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
43. In 5(A)2, relates to the requirement of Rule 14(3) of the CCS CCA Rules in the case. Here the applicant wants to say that CCS CCA Rules describes clearly as to what are the charges and what is imputations, thus they are different and distinct all together etc. We find that within the charge memo dated 24.12.2019, Annexure I and Annexure II are distinct. The first one is the Articles of charge and the second one is the statement of imputation. Further this ground has nothing to do with impugned orders challenged. Hence, this paragraph also does not make any sense at this stage.
44. In paragraph 5(A)3, the applicant wants to say that the charge memo is issued without proper application of mind etc., He has not challenged the Charge Memo at all and no relief is claimed against the same. Hence this paragraph is unrelated to the relief claimed and the contents of the impugned orders and his representations produced herein. Hence it is irrelevant. Clearly the applicant is bringing forth unrelated grounds before us for the reasons only known to him.
31
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
45. In 5(A)4, he wants to say that apart the charge is so vague, as vagueness could be and he cites Surat Chandra Chakraborthy's case.
At this stage, this has no relevance at all as he has not challenged the charge memo at all. Again and again the applicant is failing to keep in mind the impugned order and the reliefs claimed by him.
46. In 5(A)5, he says that it is relevant to notice the irregularity and the contradictions in each of the charges levelled against the applicant.
These are also related to the charge memorandum and not related to the two impugned orders and his representations and the related proceedings. Hence it is irrelevant.
47. In 5(A)6, he wants to say that the reply of the applicant is very categorical in as much as the first charge is concerned he has submitted that he was on his allotted duty near the DRI Officers who arrived abruptly, and frisked him away to the officers dressing room without informing him anything and searched his pocket and took his Oppo phone from his trouser pocket and started beating him without revealing anything to him etc. 32 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Again, this has nothing to do with the alleged inquiry into the no confidence motion against the Inquiry Officer and the Disciplinary Authority. Hence, this is irrelevant to the issues before the Tribunal and to the two impugned orders.
48. In 5(A)7, he wants to mention that as could be seen from Annexure A3, the Inquiry Officer has admittedly taken the signatures of the applicant on the copies of the said documents and taken on record, when especially wished to inspect the originals of the documents upon his own asking. Similarly when the applicant has specifically answered the question of the presenting officer that he would like to avail the facility of defense assistant to defend his case and requested for time to even submit such a letter to the IO to that effect, the IO marks the said documents as Exhibits P1 to P66. etc. Again this has nothing to do with the impugned orders in question which relate to the non-confidence against the Inquiry Officer and the Disciplinary Authority and his letter to the CVC. We are satisfied that the CCS (CCA) Rules are relevant to examine these issues at appropriate time and we also cannot give any opinion about this at this moment as these issues are not relevant at present.
33
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
49. In 5(A)8, he wants to say that Annexure A-4 objections filed by the applicant, the legality and the validity of the so called documents marked in the said disciplinary proceedings is challenged with specific reason and also the law which do not validate it, etc.. Again, this does not relates to no confidence and this has nothing to do with these two impugned orders challenged in this case. Hence it is irrelevant.
50. In 5(A)9, the applicant wants to say that it is interesting to note here that the applicant vide Annexure A5 has sought several documents of which the item no.3 is the CCTV footage to prove the innocence of the applicant, as there is no such incident, that has happened which goes to the root of the matter and also clinches the issue on hand, with greater certainty and conclusiveness etc. He has not quoted and tried to relate it, except from his other submissions, and he wants to draw a conclusion that because he has not been given this particular CCTV footage which he considers as a valid evidence and so he must get it before the enquiry must proceed further. But we do not find any reason to substitute the decision of the 34 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE disciplinary authority and other authorities under CCS CCA Rules to decide on what is the evidence to be relied. And it will be premature at this moment. And as any primary decision on this subject of the rejection of the request of the applicant, one cannot conclude either that the Inquiry Officer or the Disciplinary Authority or anyone else in the Department were prejudiced against him. We do not find any iota of personal allegation of bias against any officer, which in any way substantiated any such prejudice in such authorities. Pendency of any evidence and inclusion or exclusion of those evidence as piece of document or witness in Annexures III and IV to the charge sheet is within the domain of Disciplinary and other Authorities under CCS (CCA) Rules, and this court at this early juncture cannot substitute and scrutinize the decisions of the authorities vis-à-vis their decision on this subject. The applicant can challenge the same once inquiry is complete and the Inquiry Officer has given inquiry report and after due process the Disciplinary Authority, Appellate Authority and Reviewing Authority have passed their orders. And the content of the paragraph is also unrelated to impugned orders and the relief.
51. In 5(A)10, his representation at Annexure A-6, the applicant has given the names of the witnesses to be examined on his behalf, in 35 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE fact the same should be after the conclusion of the prosecution evidence while in the instant case, the applicant was made to give it well in advance which is also and in accordance with the rules and settled procedure as it would be like disclosing the defence of the applicant well in advance which is not proper and not as per the settled norms of conducting the departmental enquiry etc. Again this speaks of the witnesses and at the appropriate time the departmental authorities will take appropriate action on the same and this Tribunal cannot substitute its opinion on this subject at this stage, which is premature and this paragraph does not relate in any way to the subject matter of the two impugned orders.
52. In 5(A)11, he mentions that Order Sheet No.8 vide Annexure A-7 the IO through initiates the process of calling the Defense Witness one Mr.Mohit Tyagi while conceding the legitimate request of the applicant, but takes a voluntary decision of summoning the said witness also by fixing a date. But unfortunately no such thing did materialize nor was the said CCTV footage supplied to the applicant herein till date etc. 36 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Here, the applicant tries to connect it to CCTV Footage, but requirement is not clear as to what he wants to say and how he relate it to no confidence motion against two officers viz., the Commissioner and the Principal Chief Commissioner who passed the impugned orders. We do not find this ground as relevant to the challenge of the two impugned orders.
53. In 5(A)12, the applicant says that from the depositions vide Annexures A8, A9, A10 and A11, the applicant has elicited answers from these witnesses that the said incident alleged against him has been recorded in the CCTV installed at the Airport. He wants to substantiate CCTV footage be an evidence which will determine the correctness or otherwise of the very charge levelled against him and also to be correctness of the narration of events as told by the witnesses and the manner in which the so called mahazar's are conducted in a clear manner without any ambiguity, which would be relevant document even for the prosecution also to use it against the applicant in the said departmental proceedings etc. Here the applicant says that out of Annexures A8, A9, A10 and A11, certain answers from the witnesses have been elicited and he wants to substantiate this with CCTV footages which as per him is a 37 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE relevant piece of evidences. That is his personal opinion and on the subject the disciplinary authority and the other authorities under CCS CCA Rules are the proper authorities to take rightful decision. And at this preliminary stage it cannot be examined by this Court, and the said issue is unrelated to the impugned orders. Hence, it is not relevant.
54. In 5(A)13, he wants to say that Annexures A14 to A17, it is not only admitted but also the relevant communications therein have been furnished to the applicant through his defense assistant, when sought under the RTI Act, about the manner in which the said CCTV footage has been sought by one and all and also the same were procured, copied etc. which has formed the very basis of the investigation, right from the initial stage, yet the same is not handed over to the applicant, despite his several requests made for the same, would simply indicate that the prosecution is deliberately suppressing the same to the applicant as the innocence of the applicant would be established etc. The applicant asserts that it has formed the very basis of the investigation right from the initial stage. But it is within the domain of the disciplinary authority and other authorities under CCS (CCA) Rules, 1965 and the authorities concerned should 38 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE take a decision about the relevancy of any evidence and their inclusion or otherwise and it is not related to the bias as imputed against the Inquiry Officer and the Disciplinary Authority and we do not find any valid ground in this paragraph.
55. In 5(A)14, again he repeats the request regarding the necessity of the CCTV footage etc. which we have already dealt in detail and we do not consider that at this juncture we should give opinion about its relevance or otherwise. If authorities do not rely the same and it was otherwise relevant certainly the case of the Department will fail. The said relevancy can be challenged and decided by this Court after the conclusion of the inquiry and all related consequent action; and not at this stage.
56. In 5(A)15, here also the applicant elicit to his request for providing CCTV footage has been rejected by the competent authority and that it is not part of the list of documents based on which the articles of charges were proposed against him etc. By this, he wants to conclude that the authorities conduct is whimsical and illegal and unlawful. But these grounds he must take 39 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE post-facto after the conduct of inquiry and at this juncture it is premature for us to give opinion about the same.
57. In 5(A) 16, the charged officer say that vide Annexure A-20, he tried to enlighten the Inquiry Officer that the document is important to prove that the intelligence gathered by the DRI is false, that the non-production of the same would prejudice his defense etc. It is again unrelated to the reliefs and it does not substantiate either prejudice of Inquiry Officer or Disciplinary Authority and these grounds can only requires post-facto examination after the inquiry is complete, the Disciplinary Authority, the Appellate Authority and the Rivisional Authority have exercised their powers.
58. In 5(A)17, again the applicant re-emphasizes that CCTV footage is a vital evidence and it is required for cross examination. But its relevance or otherwise at this stage has to be decided by the departmental authorities under CCS CCA Rules and it can be challenged only after the disciplinary proceedings is complete and appropriate authorities like Disciplinary Authority, Appellate 40 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Authority or Rivisional Authority have exercised their jurisdiction.
59. In 5(A)18, he refers to Annexure A24 and requested to furnish CCTV footage which is not relevant at this moment for this court to examine with reference to the impugned orders.
60. In 5(A)19, he wants to conclude that this shows that the Inquiry Officer has been issued with certain directions and not letting him discharge his duties as per the rules being neutral, which is not just etc. This argument is not convincing as if the Disciplinary Authority is not relying on the said evidence, this is up to them to decide its relevancy and if they are relying, they must furnish the same but if they are not relying they are not bound to furnish it. As noted by the respondents the CCTV footage is not their own one but belongs to the Airport Authorities and the applicant if was interested to use it as a piece of evidence he must secure a copy of the same himself and also proper permission to use it in certain way not prejudicial to the interests of the Airport Authorities.
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61. In 5(A)20, The applicant states about Annexure A-27 stating that the CCTV footage which is an electronic document which is also not very relevant at this moment for us to give our opinion.
62. In 5(A)21, he wants to conclude that because of these, the authorities are so biased and prejudiced against the applicant. But merely expressing inability to provide CCTV footage which does not belong to the Department and which the Department at this moment does not want to use as a piece of evidence does not persuade us to infer any bias in the authority.
63. In 5(A)22, again is about certain aspect of video footage, which can be post-facto examined after the conclusion of inquiry and consequent orders.
64. In 5(A)23 also speaks of similar document and he wants to say that the CCTV footage which is a mandatory document for the Inquiry Officer to furnish. But the paragraph does not disclose which rule makes it a mandatory document to rely any specific document or piece of evidence which may or may not be relied by the 42 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE department. Authorities under the CCA (CCS) Rules are empowered to use any evidence as they consider to be essential.
65. In 5(A)24, he wants to show that quoting national security for non-supply of the document is not befitting and he says that the same was supplied to a similarly placed person earlier. But the contention of the respondents that each case is different and based on the facts of the case, they choose documents and evidences to be relied. And we do not find any merit in the request of the applicant that he has to rely only this CCTV footage and that it was very vital. It may be pre-mature to give opinion on this issue as to what is to be relied or not to be relied and what are the consequences of such reliance or otherwise on the disciplinary orders. One can only on post-facto will be able to scrutinise, and that does not show that the impugned orders passed by the respondent authorities were prejudiced.
66. In 5(A)25, it again refers about CCTV footage, which we do not find relevant at this stage for us to give opinion on.
67. In 5(A)26, again about CCTV footage and non-supply of the same, he wants to conclude that the Inquiry Officer and Disciplinary 43 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE Authority are prejudiced against him and that he has written to the CVC etc..
He has not been able to show any provision under which the matters of the Inquiry Officer and the Disciplinary Authority can be challenged before the CVC and we do not find such reference relevant at all to stop the inquiry. We are satisfied with the conclusion of the respondents that these reference to CVC are only dilatory tactics to delay and postpone the inquiry and final decision in the inquiry. The charged officer should eschew such dilatory tactics and actively participate in the inquiry so that he can be exonerated early if he was innocent or some other final decisions are taken as per the facts and circumstances of the case.
68. In 5(A)27, he wants to say that the enquiry was not in order as already some examination of the key witnesses was done in his absence etc. Unilateral and unauthorized non-participation is the voluntary decision of the applicants and he cannot escape from its consequences.
Again it is pre-mature for us to give any opinion on this. Also from the conduct of the applicant, sending letters to unrelated authorities like CVC and trying to create confusion even before us by 44 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE making unrelated submissions and contradictory statements, the charged officer is trying to create more and more confusion and generate more and more paper work and it does not in any way show that any authority like the Inquiry Officer and Disciplinary Authority were prejudiced against him. We are of the considered opinion that in no case the charged officer can take unilateral decision to withhold himself from the inquiry. He must participate regularly in the inquiry till the time any authority has advised him to do so; and he has to take full responsibility of his omissions and commissions during the inquiry and face the consequences of his non-participation in the inquiry. And he cannot impute any bias or prejudice based on this against the respondent authorities or challenge on that ground the impugned order.
69. In 5(A)28, again he speaks of change of Inquiry Officer as per rules, but the proceedings cannot be stayed which is like blowing hot and cold at the same time that the Inquiry Officer, exceeded his limit and acted transgressing his jurisdiction in threatening the applicant of deciding the case ex-parte, if he failed to appear in the hearing scheduled which action is opposed to law etc. 45 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE We do not find any legitimacy in this argument as if the officer has voluntarily decided not to participate in the inquiry with one pretext or the other, he has to also face the consequences of the unilateral decision taken by him. We are of the considered opinion that the authorities were right that the Inquiry Officer has to go ahead with the conduct of inquiry and conclude it in time desired.
70. In 5(A)29, the applicant wants to re-emphasize that on knowing that on 30.8.2021 the Commissioner of Central Excise has asked him for personal hearing, he had explained to him that he should not interfere in the matter as it is in the domain of the Disciplinary Authority who is appointed the Inquiry Officer and as such his interference would be transgression of his jurisdiction under the law etc. We find that this statement is contrary to his earlier allegation which was against both the Inquiry Officer as well as the Disciplinary Authority. It is further substantiated by his letter sent to the CVC. Hence, it was rightful that higher authorities like the Commissioner should directly examine these issues and decide the same through the impugned order at Annexure A-45 dated 8.9.2021. 46
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE We do not find any irregularity in the same, but we also find clearly that the applicant is changing his version before us as well as he spoke something different before the Commissioner than what was there in the allegation letter against the authorities to the CVC etc. This contradiction in his statements in different documents at different point of time, shows us clearly that the applicant has not come with clean hands before us and his submissions are far from innocent. Hence we have no doubt that the conclusion of the authorities that by the impugned proceedings and shooting unauthorized reference to CVC etc. the applicant is only trying to procrastinate and is actively putting hindrance in the conduct of the Disciplinary Inquiry.
71. In 5(A)30, he is trying to say that unfortunately the Commissioner was interested in passing an order despite the contention of jurisdiction.
We do not find this contention to be relevant as the allegation was against both the Inquiry Officer and Disciplinary Authority and hence rightly the higher authority has passed a speaking order in the interest of justice and expeditious conduct of inquiry which is in favour of both the department as well as the 47 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE charged officer. If he is innocent, he will be exonerated as early as possible and if he is found guilty, he may have to face the consequences of the disciplinary action, whichever way, decision should be in time and we do not find the Commissioner's order was in any way deficient, perverse or prejudiced. We have no doubt after seeing the said order of the Commissioner impugned that it was speaking and after due process of giving personal hearing.
72. In 5(A)31, he wants to say that there is total contradiction from authorities to authorities. But we find that authorities are consistent and we do not find any ground to impute any prejudice to them whereas we clearly find contradiction in the statement of the applicant alternatingly alleging against both the Inquiry Officer and Disciplinary Authority, then only against the Inquiry Officer, then against both of them at various forums including before us in this O.A. These grounds are flimsy and not convincing. It further impeaches the innocence of the applicant and substantiated that he has not come before us with clean hands. This proceeding itself is unwarranted and appears to be part of the applicant's dilatory tactics.
48
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
73. In 5(A)32, he wants to say that letters sent to both the DA and IO seeking production of the order be provided so as to challenge it before the appropriate forum etc. It talks about Rule 22 of CCA Rules there is no provision for filing an appeal against any order of an interlocutory nature, including in cases of bias, which can only be decided by the DA.
Again, he is trying to go back that he will rely on decision of the Disciplinary Authority and not a senior officer like the Commissioner (who is Appellate Authority), but he has forgotten that he has imputed bias against the Disciplinary Authority also along with the Inquiry Officer, which is part of his self- contradiction. Hence clearly this ground also further strengthens our feeling that these proceedings are for proceeding sake and not to facilitate meeting the end of justice. This further strengthens our feeling that the applicant is not before us with clean hand, and he would like to manipulate facts as per his sweet will.
74. In para 5(A)33, he wants to say that he has not challenged any order of an interlocutory nature and his case was mechanically rejected.
49
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE We find that both the orders impugned herein are passed after application of mind with valid reasons and with due process and it is in the interest of expeditious disposal of disciplinary case and in no way it shows prejudice of the respondent authorities. When there is no provision for such proceedings in CCS (CCA) Rules against interlocutory orders, inherent powers of disposing off any reference has to be used by appropriate authority within the hierarchy. We do not find any defect in both the orders impugned before us.
75. In para 5(A) 34, he raised a point that if the appeal filed by the applicant is not maintainable, how can the Principal Chief Commissioner issue a direction to the IO and the applicant and hence the impugned order is not only cryptic but mechanically made without any provision of law or jurisdiction over it etc. Here, he wants to say that the authorities have double standards and the applicant was victimized. But we do not find this argument substantiating in any way that the impugned orders of the authorities are improper. As expressed in the earlier paragraph, how to dispose a reference and a grievance by a higher authority need not find a place in the CCS (CCA) Rules expressly. It is implied in the inherent powers of the public authority at the appropriate level to 50 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE dispose of any such reference as is impugned in this case, and we are satisfied that it is rightfully has been disposed by the authority of desired level in appropriate manner. And their impugned order are after due process of law and are also speaking and convincing.
76. In para 5(A)35, he wants to site the case of Shri.Venkatesh Gururao Kuratti v. The Syndicate Bank rep by the Chairman on 16 April ILR 2004 KAR 2240 about refusal of the disciplinary authority/inquiry officer to furnish the documents requisitioned and sought by the delinquent has resulted in prejudice.
This is the decision to rely post-facto after the conclusion of disciplinary inquiry and the action by the concerned authorities under CCS CCA Rules, 1965 and not at initial stage where this Court cannot substitute its opinion with the opinion of the respondent authorities who must exercise their powers under the relevant provision of law and conduct the inquiry strictly as per the rules and procedures without bias. At this stage we cannot come to a conclusion that these are in any way shows bias of the authorities. This citation will not identical to the facts of the present case and not relevant at all.
51
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
77. In para 5(A)36, he wants to say that the order challenged deserves to be set aside as the same is in violation of the rules. He also cited the decision of the Hon'ble Supreme Court in the case of State of West Bengal v. Atul Krishna Shaw and Anr., AIR 1990 SC 2205. He wants to emphasize that giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review.
Before us impugned are two orders at Annexures A45 and A49 and none of them fit in this observation of the Hon'ble Apex Court. We find both of them are reasoned and speaking orders and are passed after due process of law. Hence, the cited case is not relevant at this stage.
78. In para 5(A)37, applicant cites S.N.Mukherjee v. Union of India, AIR 1990 SC 1984 to emphasize that the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. He further emphasizes that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision. 52
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE We have gone through both the impugned orders of Commissioner as well as the Principal Chief Commissioners and we find both have recorded various reasons and are speaking orders. Hence this case is not relevant to the facts of this case.
79. Further In para 5(A)38, the applicant quotes the decision of the Hon'ble Supreme Court in Krishna Swami v. Union of India and Ors., AIR 1993 SC 1407 to state that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out from the record.
We do not find that this case is any way similar to the said case and the impugned orders herein are meritorious and with sufficient reasons.
80. In para 5(A)39, applicant quotes the decision in Sant Lal Gupta and Ors. V. Modern Cooperative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336 to state that administrative and judicial orders must be supported by reasons recorded in it.
We find that two impugned orders hold due reasons. Hence this case also was not relevant to the facts of the case in hand. 53
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE
81. Same is further emphasizing in para 5(A)40 that the reason is the heartbeat of every conclusion. We find that the two impugned orders are having its reasons and rational conclusions. Hence, this argument also does not come to help the applicant.
82. In para 5(A)41, the applicant cites the decision of the apex court in Institute of Chartered Accountants of India v. L.K Ratna & Ors., AIR 1987 SC 71 which speaks of on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings etc. We do not find the case to be relevant here as both the impugned orders have given its own reasons and will stand on their feet and it can be understood even by a lay person.
83. In para 5(A)42, again recording reason is re-emphasizing.
We find that the impugned order as speaking as well as reasoned. Hence there is no new ground in the said paragraph.
84. In para 5(A)43, he says that the Inquiry Officer must be free from bias and about the rules of natural justice plays a significant role in judging the validity of judicial and administrative acts etc. 54 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE We find that the respondent authorities have been considerate and given ample opportunity of being heard and we do not find any valid grounds for bias in the authorities.
85. Para 5(A)44 speaks of the manner in which the applicant is punished is highly disproportionate and the inquiry needs to be dropped etc. This paragraph is not supported by any evidence to show how it relates to the two impugned orders as inquiry is neither complete, nor any punishment is imposed. Hence it is completely irrelevant.
86. Para 5(A)45 speaks of departmental inquiry which can form the basis for the imposition of a penalty on a civil servant must be conducted by an unbiased officer etc. We do not find any ground which may impute bias to the two officers. We have seen that the applicant is changing his version at different point of time and we find that he is not able to substantiate any bias against any authority either the Inquiry Officer or the Disciplinary Authority or the Appellate Authority; and he has been granted reasonable opportunity to participate in 55 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE the inquiry; and which he himself chooses often not to participate, and for his conduct and omissions and commissions he must face the consequences. By dilatory tactics and issuing interlocutory letters to the unrelated authorities and by making unfounded allegations against the Inquiry Officer and Disciplinary Authority the applicant in no way is able to substantiate his case. Hence, this paragraph is also not relevant.
87. In para 5(A)46, speaks of Inquiry Officer is not merely required to forward the entire papers to the punishing authority to find out whether or not the charges have been made out and he has to record his findings on the charges etc. These are not something which has to be decided at this stage as the inquiry is ongoing. Hence it is considered as absolutely irrelevant and it will only cause delay in the process of completion of inquiry and in no way substantiate any ground for interfering with the two impugned orders.
88. In 5(A)47, speaks of some judicial aspect that when it is established that the IO suffered from bias the mere fact that the punishing authority considers the report and comes to its own 56 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE conclusion would not cure the defect attached to the inquiry as the punishing authority acts upon the report of the inquiry conducted by the Inquiry Officer and the entire proceedings would be vitiated as its foundation itself is vitiated by the bias of the IO etc. We do not find at this stage these are relevant at all and these are not relevant in any way to convince us as grounds to interfere with the impugned orders.
89. In para 5(A)48, speaks about tests to be applied to find out the existence of bias etc. We do not find any para or any ground is relevant to impute bias against any of the authorities concerned who acted in the interest of expeditious disposal of inquiry. Hence, this paragraph is not relevant.
90. In para 5(A)49, the applicant cites the Hon'ble Supreme Court's decision in Jagdish Prasad v. State of Madhya Pradesh reported in AIR 1994 SC 1251 and states that where the testimony of witnesses is clouded with grave suspicion and discrepancy, particularly, recording of statement of witnesses, the conviction based on such testimony is not safe. In the instant case, the statement of the 57 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE PW1 and PW3 creates suspicion about the involvement of the accused/respondent as set out by the prosecution. He further quoted the case of Raj Kumar Singh v. State of Rajasthan reported in AIR 2013 SC 3150.
These are not relevant at this stage as we are not sitting in judgment over the inquiry, but against two interlocutory orders by the Commissioner and the Principal Chief Commissioner which are impugned. Hence these cases are not relevant at all and the applicant is trying to create confusion before us by taking all these pleas.
91. In para 5(A)50, the applicant cited the decision of the Hon'ble Supreme Court in Manohar Singh v. State of Rajasthan and Ors reported in 2010 9 SCC 486; 2010 3 SCC (Civ) 842 to state that the disclosure of application of mind is best demonstrated by recording reasons in support of the order or conclusion.
This also does not help the applicant at all as we find that both the impugned orders are reasoned and will stand on their own feet.
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92. In para 5(A)51, the applicant says that it is a settled law that the Inquiry Officer cannot split one charge framed by the Disciplinary Authority and come to his own finding in respect of one part of the charge. He also cited the decision of the Hon'ble High Court at Calcutta in the case of Bank of India v. Tapan Kumar Sheel (2007 (3) LLJ 934).
This citing is again pre-mature as we are examining only two interlocutory orders which are challenged before us and which are impugned as Annexures A-45 order of the Commissioner dated 8.9.2021 and Annexure A-49 order dated as approved of the order of the Principal Chief Commissioner of Central Excise and these cited cases are not relevant at this stage.
93. Further in para 5(A)52, the applicant mentions that catena of decisions have held that DA exercises quasi-judicial power to appreciate the evidence of finding on each of the charges and DA has to arrive at its independent conclusion after proper analysis of evidence of the prosecution and defense witnesses as well as the documents etc. He also cited the case of Managing Director, ECIL v. B.Karunakaran.
59
O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE At this stage, we are examining only two interlocutory orders and in most of these grounds taken in various paragraphs, sub paragraphs and under paragraph 5 of the O.A, the applicant is trying to examine the evidence which he can do only after the inquiry is complete and the Disciplinary Authority, the Appellate Authority and the Rivisional Authority have taken their appropriate decisions. Hence this is not relevant.
94. Para 5(A)53 speaks of the Appellate Authority in a disciplinary proceedings acts in a quasi-judicial capacity and the order passed by it has to be a reasoned one showing application of mind to the question raised by the applicant and if that is not done, the appellate order is vitiated etc. We find that both authorities who have passed the impugned orders have applied their mind and the orders are speaking. Hence this para is not relevant.
95. In para 5(A)54, the applicant cites the case of Director Marketing Indian Oil Corporation v. Santosh Kumar (2006 11 SCC
147) to show that if the order of Appellate Authority is bereft of reasons, it would amount to violation of rules and natural justice etc. 60 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE We do not find that it is relevant as the authority of impugned orders have applied their mind after due process and following the principles of natural justice. Hence, there is nothing wrong with the said orders.
96. In para 5(A)55, the applicant has cited Hansraj v. Union of India (Delhi Division Bench) reported in 2006(4) SLR 566 to state that the Appellate Authority while deciding a statutory appeal is not only required to give a hearing to the government servant but pass a reasoned order dealing with the contentions raised in the appeal.
We find that this is not relevant as both personal hearing is given to the applicant as well as a reasoned order is passed.
97. In para 5(A)56, applicant has cited the decision in the case of Mathura Prasad v. Union of India and Others (AIR 2007 SC 381) to say that by reasons of an alleged act of misconduct if an employee is sought to be deprived of his livelihood, the procedures laid down under sub-rules are required to be strictly followed.
We do not find any procedural irregularities in the two impugned orders and this paragraph is also not relevant at all. 61
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98. In para 5(A)57, he wants to say that the Appellate Authority's order is cryptic and mechanical one, there is no due application of mind nor appreciation of the evidence on record but for the sheer bias and prejudice expressed in so many words which is nothing but the personal opinion of the Appellate Authority which is contrary to the rules etc. We do not find any of the grounds taken and the decisions relied on by the applicants in the Original Application as valid and relevant to the issues to be decided by us. We find both the impugned orders are well reasoned and speaking. We also find that the applicant is trying to unscrupulously delay the whole disciplinary proceedings by filing interlocutory applications to various authorities which are also showing contradictions in the approach of the applicant, and sometimes to unrelated authorities, and the applicant is in the habit of taking different pleas at different point of time, using his sweet discretion to twist the facts as it suits him. Even his conduct of filing some application before the CVC is not sufficiently explained and we failed to understand why he went there when CVC was not an authority for Group C and D employees and if he had grievances against the orders of the Appellate Authority, there were other authorities within the department up to the Board where he 62 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE could have gone to redress his grievances rather than making interlocutory references which have no clear bearing on the disciplinary proceedings.
99. We are also of considered opinion that unless any authority authorizes him not to attend, his unilateral decision of not to participate in the disciplinary inquiry can only go against him and prejudice his case. He cannot later turn and take a plea that he was not given sufficient opportunity to be heard, or present his case and evidence, or given opportunity to cross examine. He, and he alone has to be responsible and accountable for his non-participation in the inquiry on one plea or another. Merely proceeding with the inquiry against the whims and fancies of the charged officer, the applicant cannot take a plea that his right to natural justice is curtailed. And such continuance of inquiry by the authorities in no way shows prejudice against the charged officer of any of the officer, either the Inquiry Officer or the Disciplinary Authority or the Appellate Authority.
100. We are in agreement with the Commissioner's conclusion that when the applicant had tried to impute bias to both the Inquiry Officer 63 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE and the Disciplinary Authority, they could not have themselves inquired into the said reference of interlocutory nature and decided the issue. It was right on the part of the Appellate Authority, i.e., the Commissioner concerned to examine the issues of bias and decide the same by his order dated 8.9.2021 which is impugned as Annexure A-
45. And we find it to be a speaking and reasoned order, after giving personal hearing and examining all relevant issues/facts etc.
101. Further, the same order was challenged before the still higher authority, although there is no appeal provision for any interlocutory order under the rule, but in the interest of justice, the Principal Chief Commissioner of Central Tax has passed the second impugned order dated nil vide Annexure A-49 which is impugned, and after examining the grievances has passed a speaking order, and we do not find any infirmity in the same also.
102. Further, the request for certain CCTV footage, at this stage, cannot but be decided only by the Disciplinary Authority and other authorities of the department. Regarding the relevancy of the said evidence and to provide the same physically is left with the concerned authorities to examine and to take appropriate decision at their end 64 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE only. Its relevancy or otherwise can be challenged post-facto before us after the inquiry concludes and all the Authorities/Disciplinary Authority, Appellate Authority and Revisional Authority within the Department have examined the same and exercised their powers under the CCS (CCA) rules.
103. Considering all the above facts and circumstances of this case, we do not find any convincing reason to interfere with the two impugned orders at Annexures A-45 and A-49 (Annexures A-46 and A-50 in O.A 172/2024) . But we clearly find repeated inconsistency in the averments of the applicants which re-confirms the conclusions of the respondents that the applicant is using these proceedings as delaying tactics. We also find that applicant is not before us with clean hand. We also find charges are very serious and charge memo is in order. Consequently, we have no doubt that the applicant has miserably failed to make out any case for himself to convince us to interfere with the impugned orders. Hence, we pass the following orders.
The Original Applications (OA No. 172/2024 and OA No. 173/2024) are dismissed. The respondents are directed to complete the disciplinary proceedings expeditiously and the respective 65 O.A.Nos.170/172 & 173 of 2024/CAT/BANGALORE applicants are directed to actively participate in the disciplinary proceedings without fail and not to use anymore dilatory tactics. Accordingly, all associated Miscellaneous Applications are also disposed of.
For inconsistencies, dilatory tactics and unreasonable conduct of misrepresenting and twisting their own earlier averments in various documents before us, we impose a cost of Rs.10,000/- on the two applicants each which they shall deposit with the Karnataka State Legal Services Authority within three weeks from today, failing which, Registrar, Central Administrative Tribunal, Bangalore is authorized to recover the same by due process of law with 12% interest.
(DR. SANJIV KUMAR) (JUSTICE B.K.SHRIVASTAVA)
MEMBER (A) MEMBER (J)
/SV/