Central Administrative Tribunal - Delhi
Ritu Chaudhary vs Union Of India And Others Through on 1 January, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1011/2013 M.A.No.3106/2013 Order reserved on: 06.12.2013 Order pronounced on: 06.01.2014 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Ritu Chaudhary D/o Shri Hardwari Lal R/o B-72, The Summit, DLF Phase-V, Sector-54, Golf Course Road, Gurgaon-122011. ..Applicant By Advocate: Shri M.K. Bhardwaj. Versus Union of India and Others through 1. Union of India Through Secretary (Revenue), Ministry of Finance, North Block, New Delhi. 2. Central Board of Excise and Customs (CBEC) Department of Revenue, Ministry of Finance, Government of India, 9th Floor, Hudco Vishala Building, Bhikaji Cama Place, New Delhi-110066. 3. The Commissioner of Customs, Air Cargo Export, New Customs House, New Delhi. ..Respondents (By Advocate: Shri Rajeev Kumar) ORDER
By Honble Mr. G. George Paracken, Member (J) The Applicant in this Original Application has challenged the Memorandum No.VIII (12) ACE/CIU/Newsprint/Ritu/109/2012, No.23/2012 dated 04.12.2012 on various grounds.
2. The brief facts of the case are that the Applicant, while working as an Inspector in Central Excise and Customs (CEC for short) from 01.05.2004 to 31.12.2004, was entrusted with the responsibility of examination of imported goods. Later, vide letter dated 20.10.2009, Assistant Commissioner (Vigilance) directed her to present herself before him to record her statement with regard to some of the Bills of Entry pertaining to the year 2004. In the statement recorded on 04.11.2009, she has stated that she had examined the goods covered by those Bills but she has also informed the officer concerned that she could confirm those bills only after seeking their handwritten copies. Thereafter, the Applicant sought information under Right to Information Act, 2005 and the Respondents, vide its letter dated 22.11.2012, informed her that the original import documents which were the basis for the aforesaid proceedings were not traceable. However, the Respondents, vide their aforesaid Memorandum dated 4.12.2012, proposed to hold an enquiry against her under Rule 14 of the CCS (CCA) Rules, 1965. The first allegation made against her was that she failed to carry out proper examination of the imported goods comprising fine quality paper of more than 70 GSM which attracted basic customs duty of 10% which was mis-declared as Newsprint/LWC paper carrying only 5% duty, causing revenue loss. The second allegation was that there was an element of monetary consideration on her part and it came to light when a diary of one Shri Sanjay Sharma, an employee of M/s R.K. International, Custom House Agent, was seized by the DRI. In the said diary, her name was shown as recipient of cash payment made by Shri Sanjay Sharma for clearing mis-declared consignments carrying fine quality papers of more than 70 GSM in the guise of Newsprint/LWC paper. Yet another charge against her was that she used the user ID of Shri R.C. Bhardwaj, Inspector while examining and clearing of one consignment of newsprint/LWC paper and the computer terminal of another officer using his identity/user-ID and password. Thus, in all those matters, she showed lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant and thereby contravened the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct) Rules, 1964 and rendered herself liable for action under Rule 14 of the CCS (CCA) Rules, 1965. Along with the aforesaid Memorandum, there was list of 8 documents by which the aforesaid Article of Charges were proposed to be proved, but there was no list of witnesses.
3. The Applicant in her reply dated 14.12.2012 to the aforesaid Memorandum submitted that the same was issued to her by the Disciplinary Authority without any application of mind, as all the allegations made against her were factually incorrect. Moreover, they pertains to the year 2004 and there was no valid reasons for making those allegations after such a long delay. She has also stated that such delayed Charge Memo is against the instructions issued by the Central Vigilance Commission (CVC for short), vide its letter dated 06.09.1999 which says, prolonged departmental inquiries, delay justice to the honest persons. She has also relied upon the CVCs further letter dated 23.05.2000 wherein it has been stated that the disciplinary action, if necessary, should be taken without any delay and the charge sheet, if any required, should be issued within six months of the incident subject to condition that the same was based on some preliminary enquiry. She has also submitted that the inordinate delay caused in issuing the Charges Memo is bound to cause prejudice to her as it would be difficult for her as at that distance of time, it was difficult to pick up all the threads with regard to the steps she have had taken. Again, her contention was that the Respondents themselves have admitted that the original documents in the case are not available and in their absence, the entire proceedings, if any to be held would get vitiated.
4. As regards the allegations mentioned in the charge memo is concerned, she submitted that the higher authorities who have dealt with the subject in issue viewed time and again that it was not possible for the examining officer to ascertain the exact description/classification of goods on the basis of 10% examination of goods. In all likelihood, the mis-declared goods must have been cleverly concealed in the rear portion of the container to hoodwink the examining officer. Besides this, the examining officer could never have imagined that the import invoices furnished by the regular importer along with bills of the entry were fabricated.
5. As the aforesaid submissions did not find favour with the Disciplinary Authority, it has decided to appoint an Enquiry Officer and to proceed with the enquiry. The Applicant has, therefore, challenged the aforesaid decision of the Disciplinary Authority in this OA and sought a direction to quash and set aside the aforesaid Charge memo. According to the Applicant, the decision to initiate the disciplinary proceedings against her in the absence of original records is violative of the Respondents own instructions issued by their letter No.F.No.C-14010/3/2011-Ad.V dated 24.02.2011 which stipulates that the Disciplinary Authority should not proceed with the departmental enquiry if the original documents are not available. She has stated that the North Zonal Unit of the Directorate General of Vigilance, Customs and Central Excise, vide its letter dated 21.03.2013, has very clearly stated that in the case of the Applicant, the DRI, Delhi had conducted investigation regarding the evasion of customs duty in the said matter whereas NZU had conducted only the vigilance investigation in the said case and the documents received by NZU from DRI, Delhi and ICD-TKD Commissionerate did not include originals of the B/Es bearing hand-written examination report or signatures of the assessing/examining officers. They have also stated that even though they have repeatedly wrote to Commissioner, ICD-TKD and DRI Headquarters for forwarding the said documents, yet the same were not received by them. Therefore, they are not in a position to supply the same to the Applicant. She has also contended that the impugned Memorandum was issued knowing fully well that the original documents were not available with them. The Applicant has stated that the Respondent No.2 vide its letter No.F.C-14010/3/3011-Ad.V dated 24.02.2011 had informed all concerned that it is a settled procedure that where a document is required to be relied upon in a departmental enquiry under CCS (CCA) Rules, 1965, such document should be either the original document or an authenticated copy thereof. Where an authenticated copy of the document is to be exhibited, the original document should be readily available in the custody of an authority such as CBI/Investigating agency or the Commissioner concerned so that in the event of the Charged Officer seeking inspection of the original documents, such inspection can be arranged. The Respondent No.2 has also observed in the said letter that field formation be conducted on the basis of the unauthorized Xerox copies only if the original documents are not available or are tied up in a court of law. The Applicant has, therefore, clarified that such a course of action is not permissible. If the original documents are tied up in the court of law, the CBI/Investigating Agency who had taken possession of the original documents should be asked to authenticate the documents. Its assistance be also sought to get the original documents in custody of the court inspected by the Charged Officer (CO for short) by making an appropriate application for inspection in the court, if the CO so insists. If the original documents are otherwise not in custody of Court/CBI/Investigating Agency, then the Disciplinary Authority should not proceed to conduct the enquiry till all efforts are made to locate the original documents. The Applicant has also sought specific information under the Right to Information Act, 2005 and the Respondents have very clearly informed that the hard copies of original documents of B/Es presented by the CHA/Importer before the Inspector and Superintendent in the shed and those officers gave their hand written report on the back of the body of the said BE, invoice, packing list and declaration of CHA/Importer etc. in respect of BE No.390665 dated 18.11.2004, 390737 dated 18.11.2004, 399277 dated 29.12.2004, 398845 dated 28.12.2004 and 398838 dated 28.12.2004 and they are not available.
6. The Applicant has also submitted that in the absence of any witnesses to prove the allegations, the Charge memo cannot be proved at all. The Applicant has further submitted that the Disciplinary Authority has failed to consider the fact that it is difficult for an employee to recollect such an old incident like one referred to in the Charge Memo particularly when the Applicant was not even provided any equipment to ascertain the GSM as admitted by the Respondents themselves.
7. Learned counsel for the Applicant has also relied upon the judgment of the Honble Apex Court in State of Madhya Pradesh Vs. Bani Singh and Another 1991 (Supp) SCC 738. The relevant part of the said order reads as under:-
There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
8. He has also relied upon the judgment of the Apex Court in The Secretary to Government Prohibition and Excise Department Vs. L. Srinivasan 1996 (2) SCC 157. The relevant part of the said order reads as under:-
In the nature of the charges, it would take long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appear to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across frequently such orders putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied. The appeal are accordingly allowed and the order of the Tribunal is set aside. The controversy is at large the disciplinary authority would be free to proceed with the enquiry and trial also be proceeded in accordance with law. No costs.
9. Again in the case of Food Corporation of India Vs. V.P. Bhatia 1998 (9) SCC 131. The relevant part of the said order reads as under:-
4. It is no doubt true that undue delay in initiation of disciplinary proceedings may cause prejudice to the employee concerned in defending himself and, therefore, the courts insist that disciplinary proceedings should be initiated with promptitude and should be completed expeditiously. The question as to whether there is undue delay in initiation of disciplinary proceedings or whether they are being unnecessarily prolonged has to be considered in the light of the facts of the particular case. On an examination of the facts of this case we find that the alleged misconduct came to light in April 1986 after the CBI carried surprise checks in April 1986 and the samples that were taken were found to be substandard by the Forest Research Institute, Dehradun. Thereafter, the CBI took up the investigation in the matter suo motu and submitted its report on 30-12-1988 wherein it recommended the holding of disciplinary proceedings against the employees concerned including the respondents. Shri Vivek Gambhir, the learned counsel for the appellants, has invited our attention to paragraph 1.7 of Chapter III of Volume I of the Vigilance Manual of the Central Vigilance Commission which has been adopted by the appellant-Corporation wherein it is stated;
'Once a case has been entrusted to the CBI for investigation further inquiries should be left to them and departmental inquiry, whether fact-finding or formal under the Discipline and Appeal Rules, if any, commenced already, should be held in abeyance till such time as the investigation by the CBI has been completed. Parallel investigation of any kind should be avoided. Further action by the administrative authority should be taken on the completion of the investigation by the CBI on the basis of their report.
10. Again in the case of State of Andhra Pradesh Vs. N. Radhakrishnan 1998 (4) SCC 154, the Apex Court held as under:-
It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he s not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse consideration. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularizing the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case depended on records of the Department only and Director General, Anti Corruption bureau had pointed out that no witnesses ad been examined before he gave his report. The Inquiry Officers, who had been appointed on after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that respondent at any stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the explanations of the state as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these two later memos. Accordingly we do not find any merit in the appeal. It is dismissed with costs.
11. In the case of State of Punjab & Others Vs. Chaman Lal Goyal 1995(2) SCC 570, the Apex Court has again held as under:-
10. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. They are:
(a) That he was transferred from the post of Superintendent of Nabha Jail and had given charge of the post about six days prior to the incident. While the incident took place on the night intervening 1st/ 2nd of January, 1987, the respondent had relinquished the charge of the said office. on December 26, 1986. He was not there-. at the time of incident.
(b) The explanation offered by the government for the delay in serving the charges is unacceptable. There was no reason for the government to wait for the Sub-divisional Magistrate's report when it had with it the report of the Inspector General of Prisons which report was not only earlier in point of time but was made by the highest official of the prison administration.
Head of the Department, itself The Inspector General of Prisons was the superior of the respondent and was directly concerned with the prison administration whereas the Sub- divisional Magistrate was not so connected. In the circumstances, the explanation that the government was waiting for the report of the Sub-divisional Magistrate is unacceptable. Even otherwise they waited for two more years after obtaining a copy of the said report. Since no action was taken within a reasonable time after the incident, he was entitled to and he must have presumed that no action would be taken against him. After a lapse of five and a half years, he was being asked to face an enquiry. (c) If not in 1992, his case for promotion was bound to come up for consideration in 1993 or at any rate in 1994. The pendency of a disciplinary enquiry was bound to cause him prejudice in that matter apart from subjecting him to the worry and inconvenience involved in facing such an enquiry.
12. The same view was taken by the Apex Court in P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SCC 636. The relevant part of the said order reads as under:-
This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31.7.1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed.
Mr. Prabhakar also invited our attention to the affidavit filed by the appellant in support of his case. It is stated in para 14 of the affidavit that the respondent with the mala fide intention issued the present charge memo against the appellant even though the alleged incident of issuance of sale deed was of the year 1990, which was 10 year prior to the issuance of charge memo and that very reason for issuing charge memo was that the appellant could be detained from promoting to the post of Chief Engineer of the Housing Board.
The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
13. Again, this Tribunal in B.A. Dhayalan Vs. U.O.I. OA No. 471/2010 held as under:-
There is no explanation as to how and why the Respondents would take more than 4 years in charge sheeting the applicant if his reply was not to be found satisfactory. In the facts and circumstances of the case, as mentioned above, we are of the firm view that finalization of proceedings against the applicant has been delayed beyond measures and without any justifiable explanation. It has been authoritatively held on number of occasions that when there is unexplained delay, the proceedings would be vitiated.
14. The learned counsel for the Applicant has also relied upon the recent judgment of the Honble High Court of Delhi in Writ Petition ( C) No.4245/2013 - Union of India and Another Vs. Hari Singh decided on 23.09.2013. Earlier the Respondents in the said case had filed OA 1844/2010 before this Tribunal challenging the decision of the Respondents therein to hold a departmental enquiry on the ground of inordinate delay in commencement of disciplinary proceedings. The Applicant in the said case was also an employee of the Customs Department. The Directorate of Revenue Intelligence (DRI for short) initiated inquiry against him in the matter of availment of duty drawback on export of chief quality junk UPFC pipes between 1998 and 1999 by M/s. Aravali (India) Limited, Hissar which culminated in issuance of show cause notice to the exporter. However, no notice was issued to the Applicant therein as nothing adverse was found against him. However, later in the year 2010, Disciplinary Authority issued memorandum of charges to the Applicant and appointed Enquiry Officer who has submitted his report. Aggrieved by the aforesaid memorandum dated 25th February, 2011, the Applicant pointed out that it was issued after a lapse of 13 years of a transaction which was already the subject matter of the aforesaid show cause notice and adjudication order. The Tribunal, after detailed discussion of the case passed an order on 08.01.2013 in RA 27/2012 in OA 1844/201 holding that there was inordinate and unexplained delay in commencement of the disciplinary proceedings against the Respondent before the High Court and directed that the same would stand quashed. The Respondents challenged the aforesaid order before the High Court and the High Court, vide judgment in W.P. (C ) No.4245/2013 (supra) dated 23.09.2013, dismissed it finding no merit in it and an amount of Rs.20,000/- was also imposed as cost on the Petitioner in the Writ Petition. While considering the aforesaid case, the High Court have taken into consideration the various judgments passed by the Apex Court in Bani Singh & Another (supra), N. Radhakrishnan (supra), P.V. Mahadevan (supra) etc. The High Court has also considered its earlier judgment in Writ Petition (C ) No.4757/2007 Union of India Vs. V.K. Sareen decided on 03.07.2009 wherein it has been held as under:-
13. It is trite law that disciplinary proceedings should be conducted soon after the alleged misconduct or negligence on the part of the employee is discovered. Inordinate delay cannot be said to be fair to be Delinquent Officer and since it would also make the task of proving the charges difficult. It would also not be in interest of administration. If the delay is too long and remains unexplained, the court may interfere and quash the charges. However, how much delay is too long would depend upon the facts of each and every case and if such delay has prejudiced or is likely to prejudice the delinquent in defending the enquiry ought to be interdicted. The High Court has further relied upon the judgment of the Apex Court in Secretary Ministry of Defence v. Prabhash Chandra Mirdha 2012 (11) SCC 565. In the said judgment the Supreme Court has not laid down any proposition that a charge sheet cannot be ever challenged. In para 8 of the judgment, the Supreme Court has specifically noted that the law does not permit quashing of the charge sheet in a `routine manner. The relevant part of the said order reads as under:-
Thus the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the ground that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor be to taken into consideration while quashing the proceedings.
15. The learned counsel for the Petitioners (Union of India and Another) in the said case argued the Respondent failed to show as to how he has been prejudiced by the delay.
16. The High Court in its judgment considered the judgments of the Apex Court in the cases of The Government of Andhra Pradesh and Others Vs. Appala Swamy 2007 (3) SCALE 1 and Chairman, LIC of India and Others Vs. A. Masilamani JT 2012 (11) SC 533 and reiterated the well settled principles that no hard and fast rule can be laid on the effect of delay in concluding disciplinary proceedings or on the aspect of its impact on the Government servant. The concluding part of the said judgment reads as under:-
59. We find that the courts have even held that delay in initiating disciplinary proceedings could tantamount to denial of a reasonable opportunity to the charged official to defend himself and therefore be violative of the principles of natural justice. In this regard, reference may usefully be made to the pronouncement of the Kerala High Court reported at 2001 (1) SLR 518 Meera Rawther Vs. State of Kerala wherein it has been held as follows:-
3. The court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar vs. Y.B. Zala and Others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-today diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a prevision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice.
60. So far as the prejudice is concerned, the long period which has lapsed between the alleged transaction and issuance of charge sheet would by itself have caused memory to have blurred and records to have been lost by the delinquent. Therefore, the respondent would be hard put to trace out his defence. The prejudice to the respondent is writ large on the face of the record. The principles laid down by the Supreme Court as well as by this court in the judgments cited by the respondent and noted above squarely apply to the instant case.
61. Certain intervening circumstances which are relevant and material for the purpose of the present consideration, deserve to be considered. We note such circumstances hereafter.
62. On the 23rd of September, 2012 the petitioner was promoted to the post of Superintendent, after evaluation in selection by the Departmental Promotion Committee and due vigilance clearance.
63. Learned counsel for the petitioner has also drawn our attention to the pronouncement of the Tribunal in O.A.No.2727/2010 titled Joseph Kouk v. Union of India & Another. It is important to note that Joseph Kuok was implicated in the same incident as the present respondent. He also assailed the disciplinary proceedings similarly commenced against him by way of O.A.No.2777/2010. The Central Administrative Tribunal allowed Joseph Kouks petition on the ground of inordinate and unexplained delay on the part of the respondent in issuing the charge memo. In the impugned order, the Central Administrative Tribunal has relied upon its adjudication in the Joseph Kouk matter.
64. We have been informed that eight officers out of the twenty three who were named in the report dated 6th August, 2003 have been permitted to retire. The petitioners permitted these eight officers to retire voluntarily from service. No disciplinary proceedings were initiated against them before they retired. It is trite that an employee against whom disciplinary proceedings were being contemplated would not be permitted to leave the organization or to voluntarily retire from service. It is apparent therefore, that the respondents themselves did not consider the matter as of any serious import affecting the discipline of the department.
65. In view of the above narration of facts, the delay in initiation of the proceedings certainly has lent room for allegations of bias, mala fide and misuse of powers against the respondent by the petitioners. In the judgment reported at 1995 (1) ILJ 679 (SC) State of Punjab v. Chaman Lal Goyal it has also been observed that when a plea of unexplained delay in initiation of disciplinary proceedings as well as prejudice to the delinquent officer is raised, the court has to weigh the facts appearing for and against the petitioners pleas and take a decision on the totality of circumstances. The court has to indulge in a process of balancing.
66. The alleged misconduct claimed to have been done by the respondent Hari Singh has also not been treated to be a major delinquency by the respondent in the light of the principles laid down in Meera Rawther (Supra). It, therefore, has to be held that the delay in initiating disciplinary proceedings would constitute denial of reasonable opportunity to defend the charges in the case and therefore, amounts to violation of principles of natural justice.
67. The plea of the petitioners that they did not have the original documents or certified copies thereof is baseless and rightly rejected by the Tribunal in the impugned order. As noted above, the petitioners were in possession of photocopy of original shipping bills which photocopy had been prepared by them and were available throughout. Even if the plea that the original documents or certified copy were necessary for initiating the disciplinary proceedings were to be accepted, the action of the respondents was grossly belated and certainly the long period which has lapsed was not necessary for procuring the same.
68. The respondents have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the petitioner.
69. We have noted the judicial pronouncements laying down the applicable consideration in some detail hereinabove only to point out that the law on the subject is well settled. The petitioners were fully aware of the position in law as well as of the necessary facts to adjudicate upon the issue. In our view, the present writ petition was wholly inappropriate and not called for.
70. For all these reasons, the judgment of the Tribunal cannot be faulted on any legally tenable grounds. The writ petition and application are devoid of legal merits and are hereby dismissed.
The respondent shall be entitled to costs of litigation which is are quantified at Rs.20,000/-.
17. The Respondents in their reply have submitted that the case of fraudulent import of newsprint at concessional import tariff was investigated by DRI in the year 2005 who subsequently issued show cause notices to different importers in December, 2006. Investigation from vigilance angle on the role of different officers posted in ICD TKD during this period was taken by NZU of DGOV in 2006 and names and details of officers posted in Import Shed and SIIB during the year 2004 and 2005 and other details was sought by DGOV vide letter F.No. II/39 (Vig) NZU/14/2006/324 dated 04.08.2006 from ADG (Vig). The investigation from vigilance angle was completed by DGOV in the year 2012 and DG (Vig)/CVO advised initiation of RDA for major penalty proceedings against 14 officers; issuance of administrative warning to 3 officers. On receipt of draft charge sheet from DGOV on 19.10.2012, a charge sheet Memorandum was served on the Applicant by her Disciplinary Authority, i.e., Commissioner of Customs, Air Cargo Export on 04.12.2012.
18. They have further stated that the basis on which the charges have been framed has been brought out clearly in the statement of imputation in Annexure-II to the charge sheet. The entries found in the diary of the employee of M/s R.K. International were found tallying with other details like BOE number, name of officer, etc. The contention that there was inordinate delay in issuing the charge sheet has been denied. They have stated that the magnitude of the offence committed by the Applicant and the number of officers involved, has to be considered in the matter. They have also stated that, as already brought in the charge sheet, 464 Bills of Entry were filed by a number of exporters over a period of 7 months in 2004 out of which 73 Bills of Entry were investigated by DRI in 2005 who subsequently issued show cause notices to different importers in December, 2006. After issue of show cause notices, the vigilance investigation on the role of different officers posted in ICD, TKD during this period was taken up. The number of officers, both Inspectors and Superintendents and the Importers, was large and the investigation involved examination of complex legal provisions relating to processing of Bills of Entry in EDI system. Further, the role of the CHA and the importers was also investigated as they had made illegal payments to the officers on different dates which were reflected in their private diary. The open maintaining this diary on behalf of CHA has also confirmed such payment to the officers. From the above it is seen that there was no inordinate delay in issue of charge memorandum to the concerned officers.
19. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri Rajeev Kumar. As rightly argued by the learned counsel for the Respondents that the Courts and Tribunals should not generally interfere with the disciplinary proceedings at the interlocutory stage. The High Court and Supreme Court have also held in catena of cases that Courts/Tribunals should not generally set aside the departmental enquiry and quash the charges on the ground of delay in initiation of disciplinary proceedings. As far as the question of delay in initiation of departmental proceeding, the Apex Court in Appala Swamys case (supra) held that the delinquent employee could raise it before the Enquiry Officer. However, at the same time the Apex Court has also held that the facts and circumstances of each case in question have to be examined by the Courts/Tribunals. In Meera Rawthers case (supra), the Apex Court has also held that wherever delay is put forward as a ground of quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances.
20. We, in the light of above settled legal position, have considered the facts and circumstances of the case. Admittedly, the Articles of Charges leveled against the Applicant relate to the period from 01.05.2004 to 31.12.2004. The charge was that the Applicant failed to carry out proper examination of the imported goods comprising of fine quality paper of more than 70 GSM which attracted basic customs duty of 10%, which was misdeclared as Newsprint/LWC paper, having basic customs duty of 5%, causing the alleged revenue loss. The Applicant has sought the documents to give explanation to the aforesaid memorandum of charges leveled against her. However, the Respondents have stated that none of those original documents are available. In our considered view, unless the original documents or in its absence, the authenticated photocopies are made available by the Respondents for inspection by the Charged Officer, he will not be in a position to properly defend his case. In a disciplinary proceedings, supplying the necessary documents is an essential part of the process and only on their inspection to find out its authenticity, the charged officer will have reasonable opportunity to defend his case. Therefore, there is no denying the fact that the delay in initiating the disciplinary proceedings against the Applicant has caused serious prejudice to the Applicant. There is also no proper explanation forthcoming from the Respondents as to why there was such inordinate delay in initiating the disciplinary proceedings. Another important aspect of the matter in this case is that the Disciplinary Authority is relying upon 10 documents including copies of 10 Bills of Entry, diary of Shri Sanjay Sharma seized by DRI, statement given by Shri Sanjay Sharma on 28.12.2005 and 29.12.2005, statement dated 29.12.2005 given by one Shri Utpal Gupta recoded before the DRI etc. However, not a single witness has been listed to prove those charges. Naturally, when the disciplinary proceedings are initiated after many years from the occurrence of the alleged incidents, the witness, if any, of that time may not become available later. It is a well settled law and one of the basic principles of natural justice is that the delinquent employee should have the reasonable opportunity to cross examine the prosecution witnesses. It is only after due cross examination, the Enquiry Officer himself can come to the conclusion whether the charges have been proved or not. Therefore, in the absence of any witnesses, if the Enquiry Officer comes to the conclusion that the charges have been proved, such findings can only be termed as perverse report and the same cannot be accepted. In this regard, judgment of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank & Others 2009 (2) SCC 570 is relevant. It has been held by the Apex Court that documentary evidence are required to be proved not by mere production of the documents before the Inquiry Officer but it has to be proved by examining the witnesses. The relevant part of the said judgment reads as under:-
14. 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. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
21. In the above facts and circumstances of the case, we are of the considered view that at this belated stage, particularly in the absence of relevant documents and the witnesses, if any enquiry is held, the Applicant will be greatly prejudiced and it will amount to denial of justice to her. We, therefore, consider that it will be a futile exercise on the part of the Enquiry Officer to conduct the enquiry as proposed in the impugned memorandum. Accordingly, we allow this OA and quash and set aside the impugned memorandum dated 04.12.2012. Consequently, the Applicant shall not be visited by any adverse action on the part of the Respondents or she shall not be denied any benefit which she was otherwise entitled to, due to the issuance and pendency of the aforesaid Memorandum. The Respondents shall comply with the aforesaid directions by passing an appropriate order within a period of 2 months from the date of receipt of a copy of this order.
22. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh