Central Administrative Tribunal - Delhi
Rajesh Gupta, Superintendent, Central ... vs Union Of India (Uoi), Through ... on 9 January, 2007
ORDER Shanker Raju, Member (J)
1. As common order of departmental enquiry culminates into an identical punishment, being upheld in appeal against all the three applicants, for the sake of brevity and to avoid multiplicity, OAs are being disposed of by this common order.
2. Applicants, who are Superintendents in Central Excise, have assailed an order passed by the disciplinary authority (DA) on 16.9.2004, imposing upon them a minor penalty of reduction in two stages in the time scale, on non-cumulative basis. Also assailed is an order passed in appeal on 9.1.2006, upholding the punishment.
3. Briefly stated, while working as Superintendents, a common enquiry alleges failure to maintain devotion to duty against applicants on the ground of their failure to assess the goods manufactured by M/s Nestle India Co. and their further failure to raise protective demands of duty, as a result of which loss of revenue has incurred to the Government.
4. The Enquiry Officer (EO) on the basis of the meticulous discussion of the evidence and defence has not established the charge against applicants. The DA, invoking the charge of negligence, disagreed with the findings of the EO by proving the charge and on representation imposed penalty on negligence, which on affirmation in appeal, gives rise to the present OAs.
5. Shri S.K. Gupta, learned counsel appearing for applicants though taken plethora of legal grounds to assail the impugned orders, but, at the outset, stated that whereas the charge of negligence on which disagreement is arrived at by the DA has been the basis of imposition of punishment upon applicants, yet this charge has never been levelled against them in the memorandum issued to them and against which no reasonable opportunity to defend has been accorded. It is in this backdrop stated by Shri S.K. Gupta that on an extraneous material applicants have been punished and the disagreement being a final view of the matter taken by the DA, right to representation being a post-decisional hearing, not only vitiates the enquiry but also the appellate order, where this aspect of the matter has not been considered.
6. On the other hand, Shri Mukesh Kaushik, learned counsel appearing for respondents vehemently opposed the contentions and stated that the enquiry has been conducted in accordance with the laid down procedure and as applicants have shown lack of devotion to duty, which is an indirect implication on their part, the punishment imposed is commensurate with the misconduct.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. Rule-15 of the CCS (CCA) Rules, 1965, empowers the DA to disagree with the findings of the EO but while doing so it has to be borne in mind that the finding as to conclusion of guilt should not be on any extraneous material and also should not go beyond the ambit of the enquiry. On perusal of the memorandum we do not find any charge or imputation as to negligence of applicants in discharge of their duties. The EO having exonerated applicants, the DA in its show cause notice established the charge of gross negligence on the part of applicants. As this charge is an extraneous matter and alien to the memorandum, applicants have been deprived of not only an opportunity to deny this charge but to effectively defend it, which is not in consonance with the principles of natural justice. The Apex Court in M.V. Bijlani v. Union of India , ruled that irrelevant charge cannot be the basis of the punishment.
9. We also find that while disagreeing with the findings of the EO, the DA has taken a final view of the matter and has established the charge of negligence against applicants as proved. What is required in the wake of principles of natural justice and as per the decision of the Apex Court in Yogi Nath D. Bagde v. State of Maharashtra , is to tentatively record reasons as to disagreement and thereupon on accord of reasonable opportunity to represent, a final order is to be passed. However, once the charge has been established, it appears that the issue has been pre-determined by the DA, who has taken a final view of the matter and an opportunity to represent being a post-decisional hearing and an empty formality, deprived applicants a reasonable opportunity and has greatly prejudiced them, which cannot be countenanced in law.
10. In the result, for the foregoing reasons, leaving other grounds open, OAs are allowed. Impugned orders are set aside. Consequences to ensue in accordance with law. No costs.
Let a copy of this order be placed in each case.