Central Administrative Tribunal - Delhi
Shri J.B. Bansal vs Union Of India on 28 July, 2011
Central Administrative Tribunal Principal Bench OA No.3010/2009 New Delhi, this the 28th day of July, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri J.B. Bansal, Age 56 years, S/o Late Shri R.G. Gupta, R/o KU-148, Pitampura, Delhi-34. . Applicant. (By Advocate : Shri S.K. Gupta) Versus 1. Union of India, Through Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi-110001. 2. Chairman, Central Board of Excise and Customs, Ministry of Finance, Department of Revenue, North Block, New Delhi-110001. 3. Commissioner of Central Excise Delhi-I, C.R. Building, I.P. Estate, New Delhi-110002. . Respondent (By Advocate : Shri R.N.Singh) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
During the hearing, a specific question of law on the disagreement note issued by the Disciplinary Authority has been raised. We are, therefore, not taking up all the contentions and grounds raised in this OA and the submissions made thereon by the Respondents in the counter. We are confining our consideration to the only issue: Whether the Disciplinary Authoritys disagreement communicated vide Memorandum dated 21.09.2005 (Annexurwe-A5) is legally sustainable?
2. Before we dwell on the issue, we would briefly state the facts of the case . Shri J.B. Bansal, the Applicant herein, while working as Superintendent of Central Excise, was charge sheeted for major penalty under Rule 14 of the CCS (CCA) Rules, 1965 vide Memorandum dated 21.02.2003 (Annexure-A3) on the basis of certain alleged misconduct committed by him. It was alleged that on the basis of specific information, the officers of the Preventive Branch of Division IV, on 02.08.1999 conducted searches of the factory premises of M/s Baldeo Metals Pvt. Ltd., Shahdara, Delhi and booked a case of evasion of central excise duty. The office of Chief Commissioner of Excise, Delhi on 02.08.1999 received a complaint dated 27.07.1999 from Shri Shyam Behari Goyal, Managing Director of M/s Baldeo Metals Pvt. Ltd stating that Shri Neeraj Kumar along with Shri Jitender Pal Singh, both Inspectors of the Preventive Branch of Division IV, conducted checking of the material sent by his unit to M/s Balaji Copper on the premises of the later on 24.07.1999 in order to harass him. The complaint was showing the receipt stamp of MOD-IV with some signature/initials on it. Shri Shyam Behari Goyal made two more complaints addressed to Commissioner of Central Excise on 04.08.1999 and to the Chairman, Central Board of Excise & Customs on 09.08.99, wherein he inter alia stated that Central Excise officials of MOD-IV Division viz S/Shri J.P. Singh and Neeraj Kumar, inspectors and Mohammed Ali, Assistant Commissioner, allegedly collected an amount of `3000/- per factory per month as bribe. It was also alleged that they apparently wanted him to accede to their demand for money which he refused and they began to harass him by raiding his unit. Inquiries on the complaints were carried out by the Respondents. The statement of the receipt clerk of MOD IV was also recorded wherein he denied that he had received or put his initials on the complaint dt. 27.07.1999. The statement of Shri Mohammed Ali, Assistant Commissioner, MOD-IV was recorded wherein he denied that Shri Shyam Behari Goyal met him in his office with regard to the complaint dt. 27.07.1999. The statements of Shri Anshul Aggarwal and Shri Piyush Aggarwal, both directors of M/s Balaji Copper Pvt. Ltd were recorded and they both denied the fact that any of the Central Excise officials was present in their factory on 24.07.1999 when the tempo carrying the goods of M/s Baldeo Metals (P) Ltd were being unloaded in their premises. Shri Mohammed Ali, then Assistant Commissioner, MOD-IV also stated in his statement that the firm of the complainant was dealing in Copper and they were buying the raw material and selling the finished goods at a lower rate which gave arise to suspicion and the raid on the unit of the complainant was organized. Further, inquiries carried out by the Respondents in the matter revealed that the allegations leveled by Shri Shyam Behari Goyal were false. However, the said inquiry revealed that Divisional office files/registers were not being maintained as per the prescribed procedure and that the proper procedures for issuing and maintaining search warrants, and the search warrant registers were not followed. The Applicant being posted in the Preventive branch of MOD-IV was held responsible and the said memorandum was issued to him on 21.02.2003 with following two charges :-
Article-I That Shri J.B. Bansal, Superintendent, while being posted as Superintendent in MOD-IV, Central Excise, Delhi-I was found to be actively involved in the improper maintenance of the search warrant register/file. In fact, Shri Mohd. Ali, the Assistant Commissioner has categorically stated that the search warrant register/file was in custody of Shri J.B. Bansal, Superintendent. If the Assistant Commissioner was not following the proper procedure/rules, it was duty of Shri J.B. Bansal, Superintendent to inform him that office procedure/rules were not being followed.
Article-II Shri J.B. Bansal, Superintendent while being posted as Superintendent (Prev) Central Excise, MOD-IV, Delhi-I was party to a raid on a unit, the intelligence of which was placed in the Division file, after a complaint was made by the owner of the said unit. Shri J.B. Bansal was also aware of substitution of note sheet, by which the so called intelligence was placed in the division file.
3. As the Applicant denied the charges, inquiry was ordered under Rule 14 of the CCS (CCA) Rules, 1965. The Disciplinary Authority appointed Sh. V.B. Dhar, Joint Commissioner as the Inquiry Officer (I.O.) who submitted his report holding both the articles of charges as not proved. The Disciplinary Authority vide his Memorandum dated 21.09.2005 (Annexure-A5) disagreed with the IO. After receipt of representation from the Applicant on 06.10.2005 on the same, he was granted personal hearing. The Disciplinary Authority ultimately imposed on him the minor penalty of Censure vide order dated 03.03.2006 (Annexure-A1) in the following manner :-
20. In totality of the case, I agree with the submissions made by Shri J.B. Bansal, Superintendent, since the same appear to be genuine and no mala-fide/ulterior motive appears to be involved. The raid conducted by the team of officers resulted in substantial detention of evasion of Central Excise duty and the owner of the said unit namely M/s Baldeo Metals (P) Ltd. was arrested and was remanded to judicial custody for a total period of 60 days suggesting that the case of evasion against the owner of the said unit hold ground. I also find that the complaint made by the owner of the said unit was part of his strategy to demoralize the preventive staff in order to stall the movement of the preventive staff so that he could carry on evasion of central excise duty undeterred.
21. I, however, observe that there was omission of not making entries in the search warrant register properly. This suggests that Shri J.B. Bansal, Superintendent was not careful towards the office work. Similarly, although the merger of the two notesheets was apparently done to maintain the chronology, yet the cause and arousal of circumstances for such merger were definitely avoidable. Being a gezetted officer he was supposed to exercise the control over his subordinates and ensure his subordinates being vigilance and cautious. His stand that these omissions were just inadvertent lapses which do happen in day to day working, does not absolve him of his responsibility. I, therefore, find that a minor penalty of Censure on the officer will meet the ends of justice. In view of the above findings, I proceed to order as under :-
ORDER I impose the minor penalty of CENSURE under Rule 11 of CCS (CCA) Rules, 1965 on Shri J.B. Bansal, Superintendent.
4. Feeling aggrieved by the above order, the Applicant challenged the same in his appeal dated 12.04.2006. The Appellate Authority in consultation with UPSC rejected his appeal vide order dated 07.08.2009 (Annexure-A2). In view of these two orders, the Applicant is before the Tribunal seeking intervention of the Tribunal to quash and set aside both orders with all consequential benefits.
5. We heard Shri S.K. Gupta, the learned Counsel for the Applicant and Shri R.N. Singh, the learned Counsel for the Respondents; and with their assistance perused the pleadings.
6. Shri Gupta representing the Applicant raised various contentions and inter alia contended that the Disciplinary Authority while differing with the findings of the Inquiry Authority prejudged the issues and held the charge as proved. The Disciplinary Authority, as per Shri Gupta, erred in expressing his final decision in the disagreement note.
7. On the other hand, the Counsel for the Respondents, Shri R.N. Singh, defending the disagreement note of the Disciplinary Authority contended that the Applicant was given the disagreement note along with the Inquiry Authoritys Report and on receipt of his reply, the Disciplinary Authority considered the case and passed his considered final order. His contention was that though there was no mention of tentative or provisional conclusion by the Disciplinary Authority on the IAs report, but as the representation was sought from him on the disagreement on IAs findings, the same should be construed as tentative. He further submitted that there was no procedural infirmity in communicating the disagreement note.
8. The relevant part of the Memorandum dated 21.09.2005 available at Annexure-A/5 wherein the disagreement of the Disciplinary Authority with the findings of the IA, conveyed to the Applicant is extracted below for our close scrutiny:-
5.) However, I am of the opinion that the Inquiry Authority has erred in not holding Shri J.B. Bansal, Superintendent even partly responsible for the improper maintenance of the search warrant register/file. As Superintendent (Preventive), it was his duty to ensure that proper procedure is being followed. As Shri Mohd. Ali then Assistant Commissioner has categorically stated that the search warrant register/file was in custody of Shri J.B. Bansal. Therefore, using of white fluid in the search warrant register and substitution in the note sheet pages of the case file is clearly an indication of dereliction of duty on his part. I dissent with the findings of the Inquiry Officer in as much as :
Shri J.B. Bansal, Superintendent was actively involved in the improper maintenance of the Search Warrant register by renumbering the entries and applying white fluid at several places in the Search Warrant register. If the Assistant Commissioner was not following the proper procedure and rules, it was apparently the duty of Shri J.B. Bansal, Superintendent to inform him that the proper procedure was not being followed.
Shri J.B. Bansal, Superintendent who was party to the raid on the manufacturing unit, was aware of the substitution of the note sheet pages in the divisional case file. In the said case file the information about the intelligence gathered was apparently placed at a later stage i.e. when the complaint was made by the owner of the manufacturing unit raided by them. Logically the information about intelligence should have been placed before the raid/seizure was effected. However, the scrutiny of the divisional file revealed that initially no intelligence was placed on the note sheet pages and the divisional file note sheet started with the information about the raid/search/seizure of the manufacturing unit and the said note sheet was numbered as 1. However, when the owner of the manufacturing unit lodged a complaint, then the information about the intelligence gathered was also placed in the note sheet numbering it as 1 and the earlier allotted page no 1 was renumbered as page 1A.
6.) In view of the above, I do not agree with the findings of the Inquiry Authority. Therefore, the charge of not maintaining absolute integrity, failing to maintain devotion to duty and acting in a manner unbecoming of a Govt. servant, as required under Rule 3 (1)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964 against Shri J.B. Bansal, Superintendent appears to be duly established. Shri J.B. Bansal, Superintendent also appears to have failed to exercise control over his subordinates as required under the provisions of Rule 3 (2)(i) of CCS (Conduct) Rules, 1964. The Inquiry Authority has apparently exonerated him merely on the ground that the raid in question resulted in detention of massive evasion of Central Excise duty.
7.) A copy of the Inquiry Report dated 10.11.2004 is enclosed with this Memorandum.
8.) Shri J.B. Bansal, Superintendent is hereby called upon to make his written representation or submission against the aforesaid points of disagreement within 15 days of the receipt of this Memorandum.
9. The Commissioner of Central Excise(Disciplinary Authority) did not agree with the findings of the IO stating that I dissent with the findings of the Inquiry Officer and recorded his reasons. In para 6 of the disagreement extracted above the sentence In view of the above, I do not agree with the findings of the Inquiry Authority. The above Memorandum has unambiguously reflected the mind of the Disciplinary Authority even before considering the representation of the Applicant. The reasons have been stated therein but the Disciplinary Authority has given his final conclusion. It is a predetermined and prejudged decision of the Disciplinary Authority. It is not stated anywhere to be Provisional or Tentative or stating that final decision will be taken on the grounds after consideration of his representation. The statutory Rules in the subject prescribe for the Disciplinary Authority discharging the quasi judicial powers to issue a tentative disgareement. Further, the Honble Supreme Court in catena of judgments has laid the ratio that the Disciplinary Authority has to communicate to the delinquent officer tentative or provisional or prima-facie reasons as to why he disagrees with the findings of the Inquiring Authority.
10. At this stage, we may refer the Rules 15(2) and 15 (2A) of the CCS (CCA) Rules as amended in the DOP&T Notification dated 21.8.2000 relevant for the present issue and the same envisages following :-
Sub Rule 2 of Rule 15 The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the finding of the Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within 15 days, irrespective of whether the report is favourably or not to the Government servant. Sub Rule 2A of Rule 15 provides what steps should be taken thereafter and it reads as follows :
The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub Rules (3) and 4.
11. Having closely looked into the above extracts of the Rules applicable in the case, we find that the disagreement note of the Disciplinary Authority would not pass the test of own tentative reasons for disagreements prescribed in the Rule 15(2) of the CCS (CCA) Rules.
12. Now, we advert to the settled legal position in the subject. In the case of High Court of Judicature at Bombay Versus. Shashikant S. Patil [1999 STPL(LE) 26867 SC] the Honourable Supreme Court held as follows:
"20. Legal position on that score has been stated by this Court in A. N. D'Silva v. Union of India, (1962 Supple (1) SCR 968 : (AIR 1962 SC 1130), that neither the findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963, (Union of India v. H. C. Goel, (1964) 4 SCR 718 : (AIR 1964 SC 364). The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report". Their Lordships laid down the following principle :
"If the report makes findings in favour of the public servant and the Government disagree with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf"."
The Honourable Supreme Court considered a case similar to the case we are adjudicating in the present OA, where the Supreme Court examining the provision in Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (This is similar to the Rule 15(2) of CCS (CCA) Rules) which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge and the only requirement is that it shall record its tentative reasoning for such disagreement. The case is Yoginath D. Bagde Versus. State of Maharashtra [1999 STPL(LE) 26748 SC] where the Honble Apex Court held thus :
"before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with."
It has been consistently held by this Tribunal drawing support from the decisions of Supreme Court of India and High Court of Delhi that the disagreement note has to give tentative or provisional reasons for the disagreement. In a batch of 3 OAs (OA No.1908/2006, OA No.1949/2006 and OA No.1969/2006) decided by this Tribunal on 19.12.2007 where one of us authored the judgment (Honble Mr. Justice V. K. Bali, Chairman), referred to the decision of this Tribunal in OA No.107/2007 between Constable Mohinder Singh Versus Government of NCT of Delhi & Others decided on 25.10.2007 which in turn relied upon the judgment of Supreme Court in Lav Nigam Versus Chairman and MD, ITI Ltd. & Another [(2006) 9 SCC 440] to come to a conclusion that the Tribunal in the said OA held that the disagreement note has to give tentative reasons for disagreement and if the disciplinary authority has made up its mind to punish the delinquent and that is reflected from the note of disagreement, such disagreement note would vitiate the disciplinary proceedings.
13. Considering the above facts and circumstances of the case and taking into account the statutory Rules and the settled legal position in the subject, we come to the considered conclusion that the disciplinary proceeding has been vitiated by the prejudged findings given by the Disciplinary Authority in his disagreement note. Thus, we find that the disagreement note issued by the Disciplinary Authority vide Memorandum dated 21.09.2005 is not legally sustainable and needs to be quashed and set aside. We order accordingly. Resultantly, the orders dated 03.03.2006 and 07.08.2009 passed by the Disciplinary Authority and Appellate Authority respectively are also quashed and set aside.
14. Before we part with this order, it must be noted that this is a peculiar case where major penalty proceeding has ultimately resulted in imposing the minor penalty of Censure which we have quashed. Normally, we would have granted liberty to the Authorities concerned to proceed with the disciplinary proceeding from the stage it got vitiated and we would have remanded the matter to Competent Authority, but as the Applicant has already gone through the agony of the disciplinary proceedings right from the year 2003 and 8 years have gone by, it would be apt to direct the Respondents to close this disciplinary case against the Applicant by issuing appropriate orders.
15. The Original Application is, therefore, disposed of in terms of our above orders and directions within. No costs.
( Dr. Ramesh Chandra Panda ) ( V.K. Bali )
Member (A) Chairman
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