Gauhati High Court
The Union Of India & 2 Ors vs Bamin Tari on 2 May, 2016
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM &
ARUNACHAL PRADESH)
WP(C) 7682/2015
1. The Union of India, represented by the
Secretary to the Government of India,
Department of Revenue, Ministry of Finance,
New Delhi- 110 001.
2. The Chairman, Central Board of Excise and
Customs, North Block, New Delhi-110 001.
3. The Under Secretary, Government of India,
Ministry of Finance, Department of Revenue,
Central Board of Excise and Customs, 6th Floor,
Hudco Vishala Building, Bhikaji Cama Place,
New Delhi- 110 066.
....PETITIONERS
-versus-
Shri Bamin Tari, S/o Late Bamin Taki
Additional Commissioner, O/o the Commissioner,
Central Excise and Service Tax, Dibrugarh,
C.R.Building, 'F' lane, Milan Nagar, Dibrugarh-
786 003, Assam.
...RESPONDENTS
WPC 7682/15 Page 1
BEFORE
HON'BLE MR. JUSTICE T. VAIPHEI
HON'BLE MR. JUSTICE MANOJIT BHUYAN
Advocate for petitioners - Mr. S.C. Keyal, ASGI,
Advocate for Respondents - Mr. S.Dutta, Advocate
Date of hearing - 16.03.2016
Date of delivery of judgment - 02.05.2016
JUDGMENT AND ORDER (CAV)
(M anojit Bhuyan, J.)
1. At the relevant time the Respondent i.e. Bamin Tari was serving as the Additional Commissioner in the Department of Customs & Central Excise, being so promoted w.e.f. 30.7.2009. Memo of charges was issued against him on 5.3.2014/7.3.2014 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ( in short the "1965 Rules) as follows:
" Article-1 Shri Bamin Tari, while posted as Deputy Commissioner of Customs, Inland Container Depot (ACTL.) Ballabhgarh (Haryana) during the period from April 2002 to February 2003 at ACTL, Ballabhgarh and while holding supervisory charge of processing of shipping bills and examination of export consignments in the Export Shed, failed to detect the over valuation of export goods with respect to export by M/s Sunrise International, M/s Tech Industrial Corporation, M/s Brightwel Enterprises, M/s International Engineers and M/s Vikrant Overseas and allowed them to avail undue Duty Entitlement Pass Book (DEPB) benefits to the tune of about Rs.8.61 Crores at the cost of Government exchequer. He allowed final processing of shipping bills and the WPC 7682/15 Page 2 consignments to be "let exported". Shri Bamin Tari, the then DC, did not alert/supervise the subordinate staff i.e. Superintendents/ Inspectors concerned to verify the genuineness of the export product in terms of description, quality, and value or to order for specific examination thereof. Shri Bamin Tari, Deputy Commissioner cleared consignment even after seeing the samples personally. Shri Bamin Tari as the then Deputy Commissioner failed both in his capacity as a supervising officer and as an assessing/examining officer. He thus failed to maintain absolute integrity and also failed to discharge his duty with devotion and diligence and acted in a manner unbecoming of a Govt. servant. Thus, he contravened the provisions of Rule 3(1)(i),(ii) and (iii) and Rule 3(2) (i) and (ii) of the CCS (Conduct) Rules, 1964.
Article-II Shri Bamin Tari, the then Deputy Commissioner, facilitated the Customs clearance of cheap quality export consignments of the firms controlled by Shri Vinod Kumar Garg and managed by Shri Mudit Kumar Tiwari, for pecuniary gain. Shri Bamin Tari used to receive Rs.5000/- to Rs. 7000/- pr container for Customs clearance of export consignments of Shri Vinod Kumar Garg. Shri Bamin Tari, the Deputy Commissioner thus failed to maintain absolute integrity and failed to discharge his duty with devotion and diligence and acted in a manner unbecoming of a Govt. servant and did not act in his best judgments. He also did not ensure the integrity and devotion to duty of his subordinates dealing with the aforesaid shipping bills. He, thus, contravened the provisions of Rule 3(1)(i),(ii) and (iii) and Rule 3(2) (i) and (ii) of the CCS (Conduct) Rules, 1964."
2. The gist of the charges was that while posted as the Deputy Commissioner of Customs, Inland Container Depot, Ballabhgarh, Haryana during the period April 2002 to February 2003 he failed, both in his capacity as a Supervising Officer and as an Assessing/Examining Officer, to maintain integrity WPC 7682/15 Page 3 and devotion to duty and caused loss to the Government Exchequer by not only allowing the firms so mentioned to avail undue Duty Entitlement Pass Book (DEPB) but also in facilitating the final processing of shipping bills and the consignments to be exported. Further, he had also allowed customs clearance of sub-standard export consignments of a firm for pecuniary gain, in that, he used to received monetary benefits in lieu thereof. Along with the memorandum of charges, the list of documents in support of the charges was also enclosed.
3. O.A. No. 040/00247 of 2014 came to be instituted by Bamin Tari before the Central Administrative Tribunal, Guwahati Bench, as during the said period he was serving as the Additional Commissioner, Central Excise and Service Tax at Dibrugarh, Assam. The basic grounds of challenge taken is that the memo of charges had been issued after an inordinate and unexplained delay of more than 12 (twelve) years, having regard to the period i.e. April 2002 to February 2003 when irregularities were alleged to have been committed. Further, on the same set of charges a detailed enquiry had been conducted by the Central Bureau of Investigation (CBI) and its Closure Report dated 28.12.2007 had since been accepted by the Court of Special Judge, CBI, Ambala. Also, on the same set of allegations/charges, the Directorate of Revenue Intelligence (DRI), Government of India had also initiated proceedings by way of a Show Cause Notice dated 13.9.2004 alleging violation of Section 114 of the Customs Act, 1962, which culminated in the adjudication order of the then Commissioner of Central Excise (Adjudication), New Delhi i.e. Shri Gurban Singh, exonerating Bamin Tari. In this context it was also contended that although on a subsequent date another Commissioner of Central Excise (Adjudication) had imposed penalty upon Bamin Tari and other Custom Officers on denovo proceedings, the said orders imposing penalty were eventually set aside by the Hon'ble High Court of Delhi in WP(C) 1676/2010. Further ground of challenge was that the respondent authorities had deliberately and with malafide intention issued the memo of charges at the time when he was due for promotion to the grade of Commissioner. According to him, the said proceeding had been initiated only to deny promotion benefit on the pretext of pendency of a disciplinary proceeding where the cause of action related to a period which was 12 (twelve) years old.
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4. In the proceedings before the Tribunal, the petitioners herein (Union of India & ors.) primarily raised four points. Firstly, penalty had been imposed on Bamin Tari in the de novo proceedings. Second, the initiation of disciplinary proceedings after twelve years was a result of a serious exercise involving threadbare examination of the available materials so as to obviate any element of harassment that an innocent may be subjected to and also to ensure that an errant officer is not allowed to go unpunished. Also, the orders in original, which formed part of Annexure-3 to the Charge Memo, originated only in December, 2009. Third, although Bamin Tari had been exonerated by the CBI, he did not get any relief in the de novo proceedings involving six customs cases. Fourth, the Central Administrative Tribunal was without jurisdiction to delve into the correctness of the charges and cannot take over the functions of the disciplinary authority.
5. The learned Tribunal, after taking note of the pros and cons and on an elaborate analysis of the case, allowed the Original Application vide judgment dated 24.4.2015. The learned Tribunal held that there was not only an inordinate and unexplained delay of more than 12 years in the initiation of the disciplinary proceedings, but Charge Memo had also been issued on the same set of charges already dealt with by the DRI. Bamin Tari was exonerated in the proceedings initiated by Shri Gurban Singh and although punishment was imposed in the subsequent de novo proceedings, the same had been set aside by the Hon'ble Delhi High Court. The Tribunal also held that the CBI had also, after a detailed investigation, exonerated Bamin Tari and the Closure Report submitted by CBI on 28.12.2007 had also been accepted by the Special Judge, CBI, Ambala vide order dated 28.2.2008. On the basis of the facts of the case and the law laid down by the Apex Court with regard to inordinate delay in issuing Charge Memo and the effect of a departmental proceeding consequent upon the acquittal of the proceedee by a judicial pronouncement, the Tribunal set aside the Memorandum of Charges dated 5.3.2014/7.3.2014.
6. Before this Court, the petitioners i.e. Union of India, have canvassed the following grounds of challenge:
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(i) The acceptance of the Final/Closure Report of the CBI by the
Special Judge, CBI, Ambala is not tantamount to acquittal on merit and, therefore, the same had no bearing on the departmental proceedings.
(ii) The order imposing penalty, so passed in the de novo proceedings by Shri A.P.S. Suri, Commissioner of Central Excise (Adjudication), had been quashed by the Hon'ble Delhi High Court only on the writ petition filed by one Shri S.L. Bansal and not by Bamin Tari and said Shri Bansal had since taken voluntary retirement.
(iii) The setting aside of the orders by the Hon'ble Delhi High Court operates in restoring the matter to the stage prior to the passing of the orders by Shri A.P.S. Suri and, therefore, the proceedings under the Customs Act cannot be held to have attained finality.
(iv) The delay caused in initiating the departmental proceedings was due to various complexities and no prejudice had been caused to the charged officer.
7. We have heard Mr. S. C. Keyal, learned ASGI for the petitioners as well as Mr. S. Dutta, learned counsel for the respondent.
8. At the outset it would be apposite to notice the grounds of challenge made to the memorandum of charges before the Tribunal. The statements made in paragraphs 5.2, 5.3, 5.4 and 5.5 of the Original Application sets out the case of Bamin Tari, which are reproduced hereunder:
"5.2 For that, on the same set of alleged chares, the C.B.I. premier investigating agency of Govt. of India also registered a case on 22.06.2004 under Sec. 120(B), I.P.C., read with Sec.420, 467, 471 I.P.C., read with 7,12,13(2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 by C.B.I. ACU, III, New Delhi. Thereafter, C.B.I. conducted a detailed investigation against the same set of charges, where the present applicant participated and extended his best co- operation with the C.B.I agency, however after taking all relevant WPC 7682/15 Page 6 evidences in connection with the alleged aforesaid charges, brought against the applicant, the C.B.I. did not find any infirmity or illegality in the matter of clearance of export goods belongs to Shri Vinod Kr. Garg's companies and finally C.B.I. submitted a closure report dtd. 28.12.2007, whereby the present applicant was exonerated against the same set of alleged charges and the said closure report of the C.B.I. accepted by Special Judge, Ambala on 28.02.2008, as such the present respondents has no jurisdiction to further proceed against the applicant with the same set of charges by initiating a disciplinary proceedings through impugned memorandum of charge sheet dtd. 05/07.03.2014 under Rule 14 of the CCS (CCA) Rules, 1965 after unexplained inordinate delay of more than 12 years, when the applicant is due for promotion to the next grade of Commissioner, Central Excise and Customs and the process of such promotion is already in progress and on that score alone the impugned charge memo dtd. 05/07.03.2014 is liable to be set aside and quashed.
5.3 For that, on the same set of allegation/charges, the Directorate, Revenue Intelligence (in short DRI), Govt. of India also initiated another proceeding by issuing a show cause notice dtd. 13.09.2004 alleging violation of Sec. 114 of the Customs Act, 1962, however, it would be evident from concluding part of the adjudication order in original passed by Shri Gurban Singh, the then, learned Commissioner of Central Excise (Adjudication), New Custom House, Near IGI Air Port, New Delhi and on score alone the impugned charge memo dtd. 05/07.03.2014 is liable to be set aside and quashed.
5.4 For that, Shri Gurban Singh, the then Commissioner passed similar adjudication orders in all the case of exported goods after detailed investigation/examination of all relevant documents/ witnesses in each of the adjudicating proceeding, exonerating the applicant from the proceedings which were initiated under Sec. 114 of the relevant Customs Act, 1962, in the same set of allegation, charges which are brought against the applicant in the memorandum of charge dated 07.03.2014 after inordinate delay of more than 12 years without giving any reasonable explanation and on that score alone the impugned charge memo dtd. 05/07.03.2014 is liable to be set aside and quashed.
WPC 7682/15 Page 7
5.5 For that, subsequently Shri A.P.Suri another Commissioner of
Central Excise (Adjudication) subsequently passed denovo adjudication order dtd. 08.12.2009, 21.12.2009, 22.12.2009, 23.12.2009 and 23.12.2009. In the said denovo orders Shri Suri, Commissioner, Central Excise imposed penalty upon all the Custom officers including the applicant, ignoring and overlooking the earlier adjudication order passed by Shri Gurban Singh, the then Commissioner of Central Excise (Adjudication). Being highly aggrieved other Custom officers approached Hon'ble High Court of Delhi for imposition of penalty upon them by Shri A.P.Suri and challenged the validity of those adjudication order by filing WP(C)No.1676 of 2010 and W.P.(C) 1676/2010, however, the Hon'ble High Court of Delhi after detailed consideration of the grounds raised in the case of similarly situated employees and also after hearing the arguments of the parties and on perusal of the materials on records was pleased to set aside the adjudication orders imposing penalty upon the other custom officials and the order of the Tribunal dated 18.06.2009. "
9. The facts disclosed in the aforesaid paragraphs of the Original Application are not denied by the petitioner herein. It is true that a charge memo is neither a final order nor operates as a disciplinary punishment on a proceedee. The conclusion of a disciplinary proceeding, if adverse, obviously can be tested in a court of law but to say that challenge to the disciplinary proceedings is not maintainable on grounds of being premature is misconceived. The arm of the Court is long enough to reach injustice wherever it is found.
10. The foremost point for decision is whether the delay of more than twelve years in initiating the proceedings, that remained unexplained, strikes at the root of the charge memo and the proceedings. The second consideration would be whether the departmental proceedings be allowed to stand when on the same set of charges, evidence, witnesses and circumstances the respondent Bamin Tari was exonerated by statutory authorities.
11. As regards the first point on the inordinate and unexplained delay, the Apex Court in a catena of decisions have, in no uncertain words, held that it would be unfair to permit the departmental proceedings to proceed further at a late stage or at a distance of time, which would be prejudicial to the person WPC 7682/15 Page 8 concerned. In the instant case, on the alleged irregularities against Bamin Tari pertaining to the period April 2002 to February 2003, the memorandum of charge was issued on 5.3.2014/7.3.2014 i.e. at a distance of twelve years. The only explanation rendered by the petitioners is that since initiation of a departmental proceeding is a very serious exercise and involves threadbare examination of the materials available, as such, care has to be taken to ensure that an innocent is not subjected to harassment nor an errant officer escapes punishment because of hasty and scantily deliberated decision in a given case. This explanation to justify the delay is weak, uninspiring and made as a matter of course. No cogent explanation is set forth to give the least benefit of credence to the said explanation. Not to be left without mention, proceedings had taken place in the interregnum at the instance of the CBI and the DRI which concluded in favour of Bamin Tari. Most pertinently, it is not the case of the petitioners that the department was not aware of the alleged irregularities until twelve years had passed.
12. Reference can be had to the following decisions of the Apex Court as to the fate of the disciplinary proceedings in the absence of any satisfactory explanation for the inordinate delay in issuing the charge memo, which decisions had been noticed and relevant extracts reproduced by the Tribunal :
(i) State of Madhya Pradesh v. Bani Singh- [1990(Supp) SCC 738]
(ii)P.V.Mahadevan v. M.D.,T.N.Housing Board- [(2005)6 SCC 636]
13. The irregularities which were the subject matter of the disciplinary proceedings initiated vide Charge Memo dated 5.3.2014/7.3.2014 is stated to have taken place in 2002-2003. Apparently, the department cannot feign ignorance and say that it came to learn of it only in the year 2014. This is belied by the very fact that the department was alive to the investigations made by CBI and the proceedings before the DRI. It is not comprehended as to why it had taken more than 12 years to initiate the disciplinary proceedings. The delay itself goes to show that the department did not consider the matter as of any serious import affecting the discipline of the department.
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14. The plea of inordinate and unexplained delay as well as prejudice caused to Bamin Tari had been categorically raised which, however, did not receive any satisfactory explanation from the petitioner. Neither any cogent explanation has been made to the satisfaction of this Court. From the facts appearing and respective pleadings, this Court must take a decision on the totality of the circumstances and indulge in a process of balancing.
15. We hold that the petitioners have utterly failed to provide sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against Bamin Tari. In our view and having regard to the law laid down by the Apex Court as to the effect of inordinate and unexplained delay vis-à-vis initiation of disciplinary proceedings, the present writ petition is devoid of legal merits. For all the reasons discussed above, the judgment of the Tribunal cannot be faulted on any legally tenable grounds. This writ petition being without merit on the first point itself, no further elaboration is made to discuss and adjudicate on the second point, save and except, that the Apex Court decisions in Capt M. Paul Anthony v. Bharat Gold Mines Ltd., reported in (1993) 3 SCC 679 and G.M.Tank v. State of Gujarat, reported in (2006) 6 SCC 446 meets the second point.
16. The writ petition stands dismissed. No costs.
JUDGE JUDGE Nandi WPC 7682/15 Page 10 WPC 7682/15 Page 11