Central Administrative Tribunal - Delhi
Bhupender Singh Suhag vs Union Of India Through on 21 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1009/2008 This the 21st day of October, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Bhupender Singh Suhag, Junior Departmental Representative, Customs, Excise & Service Tax Appellate Tribunal, West Block-2, R.K.Puram, New Delhi-110066. Applicant ( By Shri Piyush Kumar, Advocate ) Versus 1. Union of India through Secretary (Revenue), Ministry of Finance, Department of Revenue, North Block, New Delhi. 2. Chairman, Central Board of Excise & Customs, North Block, New Delhi. Respondents ( By Shri R. V. Sinha, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Bhupender Singh Suhag, the applicant herein, a direct recruit Appraiser, presently an Assistant Commissioner in the Customs and Central Excise Department under the Ministry of Finance, through present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, challenges memorandum dated 2.11.2005 whereby departmental enquiry has been initiated against him under rule 14 of the CCS (CCA) Rules, 1965 in respect of assessment of certain Bills of Entry pertaining to the imports attended by him during his posting as Appraiser at Inland Container Depot, Ballabhgarh during July, 1998 to February, 1999, primarily on the ground that memorandum dated 17.10.2005 containing same or similar charges against Shri Irfan Ahmad, the then Assistant Commissioner, was not only quashed by the Mumbai Bench of the Tribunal vide order dated 26.7.2006 in OA No.689/2005, but the writ carried against the order aforesaid of the Tribunal has since been dismissed by the Honble High Court of Bombay vide order dated 30.1.2008.
2. Brief facts for the reliefs as asked for by the applicant, as set out in the OA, reveal that the applicant joined service of Customs and Excise Department in the year 1989 through UPSC as direct recruit Appraiser and has put in 19 years of service. In April, 1998 he was transferred to Inland Container Depot, Ballabhgarh, Faridabad, whereat, he along with other officers, was assigned duty of assessment of the Bs/E for the goods imported through the said port. Duty of the applicant was limited to scrutiny of documents and declarations filed by the importers and to assess the duty on the basis of the same. It is his case that he was neither required nor had any opportunity of physical examination of the goods. On 26.3.1999, on some information, the department intercepted certain containers declared to contain zinc scrap/scull imported by one M/s Hindustan Overseas, wherein certain discrepancies were detected. A show cause notice was later issued to the importer as well as the custom house agent, but no officer was implicated in the said show cause notice. Later, on the ground that all the earlier consignments of secondary zinc etc. must have been misdeclared, the department issued show cause notices in respect of all the earlier imports, which, inter alia included few consignments attended by the applicant. In the said show cause notices issued under Section 124 of the Customs Act, 1962, the applicant along with the then Assistant Commissioner Shri Irfan Ahmad and other officers, was also arraigned as noticee. All the show cause notices were later adjudicated by the Commissioner of Customs and Central Excise, Faridabad, the adjudicating authority, who after detailed analysis of evidence adduced by the department found no misdemeanor on the part of the applicant and other officers, and dropped the proceedings. The adjudication orders have since been accepted by the department. On 2.11.2005, the impugned memorandum was issued proposing departmental enquiry against the applicant under rule 14 of CCS (CCA) Rules, 1965, in respect of the same imports and same evidence, wherein the aforesaid show cause notices were also enlisted as relied upon documents. On receipt of the memorandum aforesaid the applicant denied the allegations and repudiated the charges in November, 2005 itself. In the interregnum, the applicant was considered and recommended for promotion to the grade of Assistant commissioner by the DPC held on 28.7.2005. His promotion was, however, kept in abeyance and was finally granted vide order dated 13.2.2006 with retrospective effect. It is the case of the applicant that all the Bs/E in respect of which misconduct has been alleged against him in the impugned memorandum, were also attended by the then Assistant Commissioner, Shri Irfan Ahmad, against whom also a similar memorandum dated 17.10.2005 under rule 14 of the 1965 Rules was issued on similar charge and statement of imputation. Copy of the chargesheet issued to Shri Irfan Ahmad has been placed on records as Annexure A-3. Shri Irfan Ahmad challenged the said chargesheet before the Tribunal at Bombay on various grounds in OA No.689/2005, and the chargesheet issued to him was quashed by the Tribunal vide order dated 26.7.2006 inter alia on the ground that holding of the enquiry at such belated stage would deprive the applicant reasonable opportunity to defend himself as by passage of time he would have certainly forgotten various vital issues connected with the aforesaid incident. The order aforesaid was challenged before the Honble High Court of Bombay in writ petition No.2079/2007, which has since been decided vide order dated 30.1.2008 wherein the order passed by the Tribunal has been held to be just and proper. It is the case of the applicant that eversince the date of service of the impugned memorandum, he had filed several representations for expeditious culmination of the departmental enquiry, but to no avail. All his representations have evoked no reply or action by the respondents. The representations dated 9.10.2006, 11.10.2007 and 28.12.2007 have been placed on record as Annexure A-6 colly.
3. Pursuant to notice issued by the Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. While giving brief facts of the case, the allegations made against the applicant subject matter of the impugned memorandum, and his involvement have been given in details. It is then pleaded that the applicant has been negligent in verifying the exact nature and the value of the goods resulting in huge revenue loss to the Government, as revealed during investigation. Subsequent to the investigation three show cause notices under the Customs Act were issued to the parties on 8.6.1999 asking them to show cause why the balance amount be not demanded and recovered and special additional duty of customs should not be adjusted to the total differential duty payable and the importers be not penalized for their acts of omissions and commissions. The cases were adjudicated by the Commissioner of Central Excise, Faridabad vide her orders dated 28.1.2005 and 29.4.2005. The orders of adjudication would clearly show that the consignments were under-invoiced/misdeclared, but for the seizure by the DRI and follow up investigation, huge duty evasion because of negligence of concerned officers would have gone undetected. In the adjudication proceedings the concerned importers were imposed personal penalty and duties in lakhs of rupees were recovered from them. As regards misconduct on the part of the applicant, it was observed that his conduct showed lack of efficiency and he should have ordered for drawal of samples for testing their purity. The adjudicating authority observed that Had orders for drawal of samples been given, the mis-declaration could have been detected, and that Part of the goods cleared by way of mis-declaration have been seized from the two premises. The adjudicating authority further observed, thus:
I observe that the documents presented for appreciation of the Bills of Entry in question Shri B. S. Suhag, Appraiser should have noted the difference between the weight declared and the number of bundles under import. Noting the difference he should have directed for weighing the containers. No such orders were given. Thus Shri B. S. Suhag, Appraiser, has shown lack of efficiency. Had he noted the difference and ordered for weighing the containers the mis-declaration as to weight/quantity could have been detected. It is the case of the respondents that similar observations were made in the other order. Meanwhile, the CVC vide its first stage advice dated 22.7.2002 advised initiation of major penalty proceedings against the applicant and other officers appeared to be involved in the case. On completion of proceedings under Customs Act, the Commissioner of customs issued charge-memo dated 22.11.2005 for the acts of omission and commission by the applicant. Meanwhile, in view of instructions of DOP&T vide OM dated 24.2.2003 the applicant was promoted as Assistant Commissioner vide order dated 13.2.2006, acting upon the recommendations of the DPC held on 28.7.2005 w.e.f. 22.8.2005 and further the same was ante dated w.e.f. 10.12.2002 on the basis of recommendations of DPC held in November, 2002. In view of his promotion from the post of Group B to that of Group A, the disciplinary authority in respect of the applicant changed from the Commissioner of customs to the President of India. Vide memorandum dated 29.3.2008, the competent authority amended the charge-memo dated 2.11.2005 that was issued to him by the Commissioner of Customs by inserting the following para at the end of Annexure I and Annexure II:
By his above mentioned acts of omission and commission constituting a series of grave misconduct, the said Shri B. S. Suhag, therefore failed to maintain absolute integrity & devotion to duty and acted in a manner unbecoming of a Govt. servant thereby contravening the provisions of rule 3(1)(ii)(ii) and (iii) of CCS (Conduct) Rules, 1964. Meanwhile, it is stated, the Tribunal has stayed the departmental proceeding vide order dated 13.5.2008.
4. While giving para-wise reply, it is pleaded that in the case of charges framed in a disciplinary enquiry the Tribunal or Court can interfere only if on the charges framed, no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law, and that it is trite law that the Courts and Tribunals would ordinarily not interfere with the disciplinary proceedings at the threshold, i.e., at the stage of issuance of charge memo/notice as by issuance thereof no cause of action can be said to have accrued. While trying to make a distinction between the case of the applicant and that of Shri Irfan Ahmad, it is pleaded that the duties and responsibilities of Assistant Commissioner and that of an Appraiser are different and, therefore, the charges cannot be the same. While the former also performs functions of a quasi judicial authority, the latter has no such functions. Further, the memorandum against Shri Ifran Ahmad was quashed by the Mumbai Bench of the Tribunal as well as the Honble High court of Mumbai, mainly on the ground that he was functioning as quasi judicial authority, and relying on the judgment of the Honble Supreme Court in Zunjarrao Bhikaji Nagarkar which has been termed as error in law by a three judge Bench of the Honble Supreme court in Union of India v Duli Chand [(2006) 5 SCC 680]. It is then pleaded that the orders of the Tribunal and the High Court are being assailed in the form of an SLP after taking advice of learned Additional Solicitor General. Insofar as, the adjudication by customs authorities against the applicant and other officials is concerned, it is pleaded that the adjudicating authority dropped the charge of abetment under Customs Act against the applicant and other customs officers on the ground that to prove the charge of abetment, investigation has to bring on record evidence which prove prior knowledge of the offence to be committed and the benefits to be gained by the officer for aiding the commission of the offence. It is pleaded that on the acts of omission and commission, it was observed that the conduct of the applicant showed lack of efficiency, and that he should have ordered for drawal of samples for testing their purity. The adjudicating authority observed that part of the goods cleared by way of misdeclaration have been seized from the two premises. Mention of some other observations made by the adjudicating authority has also been made. Insofar as, identical charges framed against the applicant and Shri Irfan Ahmad are concerned, it is pleaded that perusal of charge memo dated 7.10.2005 issued against Shri Irfan Ahmad would show the difference between the charges, and that in fact the charges cannot be the same as the duties and responsibilities of Assistant Commissioner and that of Appraiser are different, and further that while the former also performs the function of a quasi judicial authority, the latter has no such functions.
5. The applicant has filed rejoinder refuting the defence sought to be projected in the counter reply and reiterating his case as set out in the Application.
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
7. During the course of arguments, it remained admitted position that the charges have been framed against the applicant pertaining to the same events as were framed against Shri Irfan Ahmad, even though it is stated by counsel representing the respondents that the role of Shri Ifran Ahmad who was Assistant Commissioner was different than the one played by the applicant. If there was to be dispute with regard to the events being different, we would have made elaborate mention of the same. It may be mentioned that the applicant has placed on record articles of charge framed against him annexed with the impugned memorandum dated 2.11.2005 (Annexure A-1), as also the articles of charge against Shri Irfan Ahmad (Annexure A-3). The roles of the applicant and of Irfan Ahmad have necessarily to be different, but that may not make any difference in the context of the fact that the charges against Irfan Ahmad were quashed and set aside by the Tribunal, upheld by the Honble High Court of Bombay on the ground that there was inordinate delay in proceeding against him, which had prejudiced his defence. It is no doubt true that the charge against Irfan Ahmad was also quashed/set aside on the ground that he was acting in quasi judicial capacity. The order of the Tribunal has been annexed with the Application as Annexure A-4. The difference in time of the charge memo issued against the applicant and Irfan Ahmad is only of few days. While seeking quashing of the charge, it was urged on behalf of Irfan Ahmad that the same was to be set aside for the inordinate and unexplained delay of seven years. The other argument pressed into service was that the Customs authorities had dropped the charge which was same as subject matter of enquiry against him. While dealing with the aspect of delay and consequences thereof, the Tribunal on the basis of several judicial precedents observed thus:
29. On perusal of reply of the respondents we do not find any explanation rendered for inordinate delay. The delay remains unexplained. In the facts and circumstances of the case this delay is unreasonable, unexplained and inordinate. Due to this delay we are of the considered view that the applicants defence has been jeopardized as at this point of time it would not be possible for the applicant to make defence witnesses available and by a test of common prudent man no one is expected to remember dates and events happened in the past particularly after a long time. The holding of departmental enquiry at such belated stage would deprive the applicant reasonable opportunity to defend himself as by passage of time he would have certainly forgotten various vital issues connected with the aforesaid incident. The order passed by the High Court of Bombay rejecting writ petition No.2079/2007 filed against the order of the Tribunal reads as follows:
1. Heard learned counsel for the petitioner. Perused the order passed by the Central Administrative Tribunal (CAT). The CAT has found that the charges which were leveled do not constitute misconduct as a quasi-judicial officer It has been further found that the charges are stale (emphasis supplied). 1998 misconduct is being tried after a period of 7 years. Relying upon the judgment of the Apex Court the charge sheet has been quashed. We find that the order is sound. We find no interference is required at the hands of this court. Writ petition is therefore rejected. The High Court passed the order reproduced above on 30.1.2008, and, so far, the learned counsel representing the respondents informs us, no SLP thereagainst has been filed in the Honble Supreme Court. It is no doubt mentioned in the counter reply that after consultations the appeal may be filed.
8. In the matter of delay, there is absolutely no difference between the case of the applicant and that of Irfan Ahmad. As mentioned above, admittedly the events from where charges have been carved out either against the applicant or Irfan Ahmad, are absolutely the same. The plea raised by the applicant pertaining to delay and prejudice caused to him is the same and so is the explanation for delay sought to be given by the respondents. Once, a coordinate Bench has taken a view and which has even been affirmed in writ petition filed by the respondents, it would be more appropriate for us to take the same view. In fact, once the view taken by the Tribunal has been affirmed by a judicial forum where the orders passed by the Tribunal can be challenged, and the observations made by the Tribunal with regard to delay have been affirmed by so specifically observing, there would be no choice with us but to take the same view.
9. In view of the discussion made above, the impugned chargesheet dated 2.11.2005 is quashed and set aside and the Original Application is allowed. There shall, however, be no order as to costs.
10. Before we may part with this order, we may mention that since we have decided the case exclusively on the basis of an earlier decision of the Tribunal affirmed by the High Court, the respondents would be at liberty to file SLP before the Honble Supreme Court straightway, if permissible, or else seek revival of this Application in case, the Honble Supreme Court may set aside the order passed by the Tribunal so confirmed by the High Court of Bombay, in the SLP that may be filed by them. We may also mention that the learned counsel representing the respondents has referred to some judicial precedents in the matter of delay, but, as mentioned above, there would be no need to make mention thereof, as in exactly same circumstances, a view has been taken and there is no reason for us to differ with the same.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/