Central Administrative Tribunal - Chandigarh
Kamaljit Singh vs Central Excise & Customs on 12 December, 2024
1 (OA No. 060/743/2017)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Reserved on: 03.10.2024
Pronounced on: 12.12.2024
OA No. 060/743/2017
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA, MEMBER (A)
Kamaljit Singh, son of Sh. Naghaia Ram, aged 57
years, now resident of Village Dabhpur, P.O.
Massewal, District Ropar.
.......... Applicant
(BY Advocate: Sh. Rishav Sharma)
Versus
1. Union of India through Secretary, Ministry of Finance,
Department of Revenue, Central Board Excise and
Custom, New Delhi-110011.
2. The Chief Commissioner, Central Excise Zone (CZ),
Central Revenue Building, Plot No. 19, Sector 17-C,
Chandigarh.
3. The Commissioner, Custom (Preventive)
Commissionerate, the Mall, Amritsar-143001.
4. Additional Commissioner (P & V), Customs Preventive
Commissionerate, Central Revenue Building, the Mall,
Amritsar.
.................Respondents
(BY Advocate: Sh. Sanjay Goyal,Sr. CGSC
alongwith Sh. Pankaj Khurana)
2 (OA No. 060/743/2017)
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. This Original Application has been filed under Section 19 of the A.T. Act, 1985) against issuance of Inquiry Report dated 19.12.2013 (Annexure A-2), Penalty Order dated 05.06.2014 (Annexure A-4) whereby the applicant has been dismissed from service w.e.f. 06.06.2014 by the Disciplinary Authority (respondent No. 4) and the period from 19.10.2009 to 08.04.2013 has been treated as unauthorized wilful absence from duty and it has been deemed to cause an interruption or break in service of the applicant. The applicant further challenged the Order-in-Appeal dated 09/10.10.2014, whereby the appeal of the applicant has been rejected by the Appellate Authority (respondent No. 3) (Annexure A-6) and Order-in- Revision dated 29.03.2016 whereby the Revision Petition filed by the applicant has been dismissed by the Revisionary Authority (Respondent No. 2) (Annexure A-10).
2. The applicant has sought the following relief(s):-
"8(ii) That the Inquiry Report dated 19.12.2013 (Annexure A-2), Penalty Order dated 05.06.2014 (Annexure A-4), Appellate Authority Order date 09/10.10.2014 3 (OA No. 060/743/2017) (Annexure A-6) and Revisionary Authority dated 29.03.2016 (Annexure A-10) be quashed and set-aside.
(ii) That the respondents be directed to take back the applicant in service w.e.f. 06.06.2014 along with all consequential benefits from the due date."
3. The factual matrix of the case at hand is that the applicant joined the Custom and Central Excise department in the year 1979 as a Sepoy. He was promoted to the rank of Assistant Sub Inspector (ASI) on the basis of his good/excellent record. Unfortunately, the applicant was falsely implicated in a criminal case over an ancestral property dispute with his cousins during the period 2009 to 2015 and the circumstances forced the applicant to remain absent from duty. An FIR No. 73 dated 02.07.2011 was also got registered against him under different sections of Indian Penal Code at Police Station Kiratpur Sahib, District Ropar. A charge sheet dated 08.04.2013 (Annexure -1) was issued to the applicant proposing to hold an inquiry against him under Rule 14 of the CCA Rules, 1965 charging the applicant that while he was posted in anti-smuggling branch, Custom (Preventive) Commissionerate, 4 (OA No. 060/743/2017) Amritsar, he failed to maintain devotion to duty in as much as he has been absent from duty wilfully and unauthorizedly w.e.f. 19.10.2009 and he failed to intimate the Department about his arrest for the period from 02.07.2011 to 06.07.2011. The applicant replied to the charge sheet on 21.02.2014 denying the charge and explaining the sufficient cause pleading to his absence. The applicant joined the duty on 25.02.2014.
4. The Disciplinary Authority passed an order dated 05.06.2014 (Annexure A-4) imposing major penalty of dismissal from service upon the applicant w.e.f. 06.06.2014. It was further ordered that period from 19.10.2009 to 08.04.2013 with regard to the applicant be treated as unauthorized wilful absence from duty and it shall be deemed to cause an interruption or break in service of the charged officer. The appeal dated 16.07.2014 (Annexure A-5) submitted by the applicant was also dismissed vide order dated 09/10.10.2014.
5. The applicant submitted that he also filed a Criminal Misc. No. M-435 of 2025 before the Hon'ble Punjab and Haryana High Court praying for quashing of FIR 5 (OA No. 060/743/2017) and all subsequent proceedings in view of the compromise with the complainant Ranjit Singh. The Hon'ble High Court was pleased to allow this petition and quashed the said FIR No. 73 dated 02.07.2011 and all subsequent proceedings arising out of the same vide a judgement dated 27.02.2015.
6. Consequent to the order dated 27.02.2015 passed by the Hon'ble Punjab and Haryana High Court, the applicant filed a Revision Petition on 08.04.2015, but the same was dismissed.
7. It is further averred in the OA that it is a settled law that even if the Charged Officer remains absent and/or admits the charge, the article of charge is required to be established and proved on record by the Presenting Officer and the Inquiry Officer is required to give his findings on the basis of such material only. Whereas, it is averred by the applicant that in his case, the finding has been recorded against the applicant by the Inquiry Officer in the absence of any such material brought on record by the Presenting Officer. The Inquiry Officer without examining any prosecution witness and documents and just by relying upon the written brief submitted 6 (OA No. 060/743/2017) by the Presenting Officer concluded the inquiry. In this context, the applicant relied upon an Apex Court decision dated 15.02.2012 in Civil Appeal No. 2106 of 2012 titled Krushnakant B. Parmar Vs. UOI & Ors. wherein it has been held that if the absence is the result of the compelling circumstances under which it was not possible to report or perform duty such absence cannot be held to be wilful.
8. The applicant submits that the Inquiry Report, penalty order, appellate authority order and the order passed by the revisionary authority are not only arbitrary and illegal but also has been passed without considering the various pleas of the applicant in right perspective and passed in violation of the provisions of CCS (CCA)Rules, 1965 and the penalty imposed upon the applicant is also highly disproportionate to the article of charge levelled against him. Hence this OA.
5. The respondents have countered the averments made in the OA by filing a comprehensive written statement.
6. It has been stated by the respondents that during the inquiry proceedings, the applicant was given four 7 (OA No. 060/743/2017) opportunities on 18.09.2013, 03.10.2013, 15.10.2013 and 19.11.2013 to appear before the inquiry authority personally or through his authorized representatives. In spite of having been given such opportunity, the applicant neither appeared before the inquiry officer nor sought any adjournment. The applicant did not submit any written submission in his defence during the course of inquiry proceedings. The case of the applicant had been dealt with on the basis of the record. The applicant did not submit any evidence to prove qua his absence from duty. Further, question of examining the witnesses does not arise.
7. The respondents further submit that appeal filed by the applicant has been rejected. The Presenting Officer has submitted the brief qua the charges levelled against the applicant and the same have been elaborately discussed and brought out.
8. The replying respondents have submitted that the appeal preferred by the applicant had been rejected by the appellate authority vide order dated 09.10.2014 which reads as under:-
"I also find that the appellant's contention that the Inquiry Authority's finding that the appellant has 8 (OA No. 060/743/2017) violated the provisions of Rule 3 (1)(i)(ii) is illegal, is not tenable. It was alleged in the charge sheet that the appellant had violated the said provisions of CCS (Conduct) Rules, 1964. The Inquiry Authority, on completion of the inquiry, has given his finding whether the said allegation is proved or not."
9. Similarly, the applicant had filed the revision before the revisionary authority which was preferred by the applicant when the Hon'ble High Court has quashed the FIR and all subsequent proceedings in view of the compromise with the complaint, the revisionary authority has also dismissed the revision petition on 08.04.2015.
10. We have heard the learned counsels for the parties and have carefully gone through the record.
11. The main contention raised by the applicant is that the inquiry had been conducted in violation of the procedure prescribed under the Rules and the action on the basis of the inquiry is nonest in the eyes of law.
12. It has been specifically submitted by the applicant that the procedure prescribed under Rule 14(1) of CCS (CCA) Rules, 1965 had not been adhered to and moreover, no witness has been produced in the inquiry. It has been submitted by the learned counsel for the applicant that the Inquiry Officer has 9 (OA No. 060/743/2017) given the findings on the basis of material/documents only which have not been proved by any witnesses. So, the inquiry report in itself voids ab initio and is not sustainable in the eyes of law.
13. The learned counsel for the applicant submits that in view of such position, the important right of cross- examining the witness has been taken away.
14. The further contention of the applicant is that the applicant could not attend the duty and inquiry proceedings due to the circumstances beyond his control.
15. Whereas, on the other side, the respondents have submitted that the applicant was given four opportunities on 18.09.2013, 03.10.2013, 15.10.2013 and 19.11.2013 to appear before the inquiry authority personally or through his authorized representatives and despite that, the applicant neither appeared before the Inquiry Officer nor sought any adjournment and the Presenting Officer has submitted the written brief with documents and on that basis, the charges against the applicant were proved.
10 (OA No. 060/743/2017)
16. As per Memorandum dated 08.04.2013 (Annexure A-
1), two articles of charges had been indicated. Statement of imputation and misconduct was also there. As per Annexure III of the said Memorandum, there is description of documents (authenticated copy), but as per Annexure IV, a "Nil" remark was written against the list of witnesses by whom the articles of charge framed against Sh. Kamaljit Singh, are proposed to be sustained. So, it is clear that only the description of documents is there and there is no list of witnesses. From the inquiry report submitted by the Inquiry Officer, the Inquiry Officer has only discussed the documents and no witnesses have been produced for approving the articles No. (I & II). The Inquiry Officer has only relied upon the documents which have not been proved by any witnesses and the Inquiry Officer has come to the conclusion that the charges have been proved. The Memorandum of Charges have been issued under Rule 14 of CCCS(CCA) Rules, 1965.
17. As per Annexure A-2 (Inquiry Report), it has been clearly mentioned that despite the opportunity, the accused/applicant did not appear. As per Annexure A- 11 (OA No. 060/743/2017) 2, it was clearly indicated that if the applicant does not appear, the case will be decided ex-parte and ultimately, the matter was taken up by the Inquiry Officer on 05.11.2013. But, there was no response on behalf of the applicant. Resultantly, the Inquiry Officer has asked the Presenting Officer to submit a brief and the Presenting Officer submitted the same to the Inquiry Officer. On that basis, the Inquiry Officer has concluded that the Charged officer failed to plead his case before the Inquiry Officer and concluded that the charges are proved beyond doubt.
18. From the Inquiry Report (Annexure A-2), it is crystal clear that the proceeding was not conducted by the Inquiry Officer ex-parte. No witness was called. Documents presented by the Presenting Officer were not exhibited before the Inquiry Officer and no statement has been recorded whatsoever by the Inquiry Officer and only concluded that the charged officer/applicant failed to plead his case before the Inquiry Officer and ultimately held that the articles of charge are proved beyond reasonable doubt.
19. The Disciplinary Authority vide Annexure A-4 has imposed the punishment under Rule 11 (ix) of CCA 12 (OA No. 060/743/2017) (CCA) Rules, 1965 and the applicant was dismissed from service w.e.f. 06.06.2014. The period from 19.10.2009 to 08.04.2013 was ordered to be treated as unauthorized wilful absence from dutyand will be deemed to cause an interruption or break in service of the Charged Officer.
20. Though the applicant has filed the appeal before the Appellate Authority indicating the relevant provision quoting the Rule 14 of the CCS (CCA) Rules, but the Appellate Authority has passed order dated 10.10.2014 (Annexure A-6) and affirmed the order passed by the Disciplinary Authority and the appeal was dismissed.
21. The applicant has filed the Revision Petition before the Revisionary Authority, but the same has been dismissed on 29.03.2016 (Annexure A-10).
22. From the facts, especially Charge Memo, no witness had been indicated. As per the Inquiry Report, the Inquiry Officer only relied upon the description statement given by the presenting Officer and on that basis, the Inquiry Officer has found that the Articles of charges are proved as the Charged Officer was not able to defend himself. The learned counsel for the 13 (OA No. 060/743/2017) applicant submits that even if the applicant/Charged Officer did not appear before the Inquiry Officer, the Inquiry Officer should have proceeded ex-parte and the Rule 14 of CCS (CCA) Rules should have been adhered to, but the same has not been done. Though the respondents have submitted that the respondents have complied with the provisions of Rule 14 of the CCS (CCA) Rules, 1965, but the contention of the learned counsel for the respondents is totally against the record. The same is very clear as per the Inquiry Report submitted by the Inquiry Officer. The Inquiry Report was accepted by the Disciplinary Authority and the Disciplinary Authority awarded the punishment which has been affirmed by the Appellate and Revisionary Authority.
23. The applicant relied upon the Apex Court judgement in Krushnakant B. Parmar (supra) wherein it has been specifically held that if the absence is the result of the compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful.
24. The applicant has also relied upon the judgement passed by the Jabalpur Bench of this Tribunal in OA 14 (OA No. 060/743/2017) No. 410 of 2011 titled Ajay Kumar Yadav Vs. UOI & Ors. decided on 03.08.2018.
25. The learned counsel for the applicant submitted that merely the fact that the applicant has not participated in the inquiry, is not indicative of proving the charges. The basic principle is that it is for the prosecution to prove its case. The findings in an ex-parte proceedings, should be based on due consideration of evidence. However, all these factors have not been taken into consideration by the Inquiry Officer. In this regard, he has placed reliance on the judgment of Hon'ble Apex Court in the case of Modula India v. Kamakshya Singh Deo, (1988) SCC 4 619.
26. Sub rule (14) of Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 says that:-
"On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit."15 (OA No. 060/743/2017)
27. The Hon'ble Apex Court in the matters of Roop Singh Negi vs. Punjab National Bank and others, 2009 (2) SCC 570 has held that:-
"10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof."
28. In view of the law settled by the Apex Court and also the Inquiry Report submitted by the Inquiry Officer, this Tribunal did not find any reason qua the fact that the Inquiry Officer has complied with the provisions of Rule 14 of CCS (CCA) Rules, 1965. Resultantly, the present Original Applicant is allowed and the Inquiry Report (Annexure -2), Penalty Order (Annexure A-4), Appellate Order (Annexure A-6) and Revisionary Order (Annexure A-10) are hereby quashed and set aside. The respondents are directed to reinstate the applicant 16 (OA No. 060/743/2017) forthwith with all consequential benefits as per rules.
29. There shall be no order so as to costs.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
ND*