Central Administrative Tribunal - Lucknow
Ravindra Kumar Saxena vs Union Of India on 10 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH,
LUCKNOW
Original Application No: 516/2010
This, the 10th day of August, 2011
HONBLE JUSTICE ALOK KUMAR SINGH, MEMBER (J)
HONBLE SHRI S. P. SINGH, MEMBER (A)
Ravindra Kumar Saxena,
aged about 59 years,
son of Late Pratap Narain Saxena,
resident of HIG 116, Avas Vikas 1,
Kailash Vihar, Kalyanpur, Kanpur.
Applicant
By Advocate Shri R.S. Singh/Shri A. K. Rai.
Versus
1. Union of India,
through the Chief Secretary,
Revenue Department, North Block,
Central Civil Secretariat,
New Delhi.
2. Chief Commissioner,
Custom,
Central Excise & Service Tax,7-A,
Ashok Marg, Lucknow.
3. Commissioner,
Customs & Central Excise,
Kanpur.
Respondents
By Advocate Shri S. P. Singh.
ORDER
By Honble Shri S. P. Singh, Member (A)
1. This O.A. has been instituted seeking following relief(s):
(a) To set-aside the impugned order of dismissal passed by opposite party No. 2 on 28.10.2010 as (contained as Annexure No.1) along with order dated 31.8.2010 (Annexure No. 2) with all consequential benefits.
(b) To direct the opposite parties to reinstate the petitioner on the post of Superintendent Central Excise and to pay him salary regularly with all consequential benefits.
(c) To issue any other direction or order which, this Honble Tribunal may deem, fit and proper in the facts and circumstances of the case.
(d) To allow the original application with costs.
2. There is an Inland Container Depot (ICD), at Agra, falling within the jurisdiction of Central Excise Commissionerate, Kanpur, from where the imports and exports of the goods through containers from/to to Gate ports are allowed for home clearances/exports. During the period of July 2000 to March 2001, along with others Shri Jagdish Singh, Superintendent and three Inspectors namely Shri R. K. Saxena, Shri L.C. Gajwani and Shri P.N. Ram, were posted at the said ICD, who were carrying the job of inspection, assessment, examination of goods and determination of duty to be paid or drawback to be given from/to Importers/Exporters.
3. An intelligence came to the notice of the Directorate General of Revenue Intelligence, Lucknow, that one exporter namely M/s Brij Impex International, Agra are exporting, inferior quality of gaskets grossly over priced to claim higher amount of drawback through fraudulent manner which was within the knowledge of the some officers posted there and in conspiracy with them for consideration etc. Therefore, the search operations were carried in the last week of March 2001, resulting in seizure of such consignment at Mumbai Port involving therewith a drawback of Rs. 19.33 lacs. Subsequently more consignments were also detained and were got examined. The subsequent detailed investigation led to establishment of claiming of inadmissible drawback claim to the tune of Rs. 51.22 lacs on exports of Peter Engine Gaskets, which were exported in the month of August to December 2000. During the course of investigation the Directorate of Revenue Intelligence officers arrived at a tentative conclusion that such ongoing fraudulent export for claiming higher drawback was with connivance of the Customs and Central Excise officers namely Shri Jagdish Singh, Shri L.C. Gajwani, Shri P.N. Ram and Shri R. K. Saxena along with others.
4. Their investigation led to issuance of notice under the provisions of the Customs Act for demanding wrongly claimed, sanctioned and disbursed drawback claim totaling to the tune of Rs. 51.22 lacs along with for imposition of penalty on the aforesaid Customs officers for contravention of various provisions of the Customs Act i.e. under the Show Cause Notice issued under F. No. VIII(Seiz.) LRU/06/2001, dated 28.9.2001. The Show Cause Notice clearly alleged that the officers alongwith exporters with their employees and agents had entered into a criminal conspiracy which defrauded the Government Exchequer. The show Cause Notice was adjudged by the Commissioner, Central Excise, Kanpur by Order-in- Original No. 15/Cust./Commr./Adj./05, dated 30.12.2005, wherein in addition to confirming the demand of Rs. 51.22 lacs, the seized goods worth Rs. 1.17 Crores were absolutely confiscated. A penalty of Rs. 20 lacs, was imposed on M/s Brij Imex International, Agra i.e. exporter, Rs. 10 lacs each on Shri Rajesh Sharma, Shri Neeraj Kumar Jhanjhi and Rs. 10 lacs on Shri Kuldeep Kumar Jhanjhi, Rs. 10 lacs on Shri Jasmeet Kohli and Rs. 5 lacs on Deepak Lalwani etc. In the said order a penalty of Rs. 25, 000 was imposed on Shri P.N. Ram, the Inspector, customs and Central Excise so posted at ICD Agra. The Commissioner, Central Excise, Kanpur ordered immediate payment along with interest of the amount of Rs. 51.22 lacs, which had been sanctioned and paid to the exporter illegally. However, no penalty was imposed under the provisions of Customs Act, agents the other three officers of the department, who were also noticee.
5. During the course of investigation, by the DRI, Shri R. K. Saxena was arrested on 08.06.2001 by the DRI, Lucknow. He was bailed out on 13.06.2001. The statement of Shri R. K. Saxena, Inspector of the Department was recorded on 7.06.2001 and 08.06.2001 by DRI Lucknow wherein he had admitted that he had done all this in full and complete knowledge in return for which he was getting a monitory share to the tune of Rs. 2.50 lakhs, out of this fraudulently availed duty drawback amount.
6. Since, the matter of fraudulent export was serious, wherein prima-facie involvement of departmental officers, posted and present at the time of export, when the goods were cleared on their assessment by accepting those declaration etc. and in view of investigation report of DRI initiating the involvement of the departmental officers, the matter was handed over to the CBI for further investigation for fixing and fastening the criminal liability on such exporters and against the officers of the department.
7. The CBI investigated the matter, as referred by the Revenue Department to them. The S. P. , CBI, Special Police Establishment, Dehradun Brach, vide his investigation report dated 10.9.2005, forwarded to DG (Vig.) vide F. No. V-536/1/2002/5047 dated 29.9.2005, recommended that the department may take such action as deemed appropriate in respect of Shri Jagdish Singh, then Superintendent, ICD, Agra, Shri L.C. Gajwani and Shri R. K. Saxena, both then Inspector, ICD, Agra. While at the same time recommending prosecution against Shri P.N. Ram, then Inspector under Section 120-B,420, 467,471 IPC and 12(2) read with provision of section 13 (1) (d) of PC Act, 1988. The brief before CBI for causing inquiry was whether the aforesaid departmental officers had dishonestly and fraudulently, by ;abusing their official position, as public servant, enabled M/s Brij Impex International, to falsely claim higher duty drawback to the extent of Rs. 51.22 lacs for the export of Peter Engine Gasket, exported by them during the month of August to December 2000, knowing fully well that the exported materials were of inferior quality and over invoiced and thus caused undue pecuniary gain to the tune of Rs. 51.22 lacs to M/s Brij Impex International, Agra, and correspondingly loss to the Central Excise Department.
8. The appeal against the Order-in-Original, dated 30.12.05passed by the Commissioner, Central Excise, Kanpur under the provisions of the Customs Act, 1962 had been challenged before the CESTAT by aggrieved parties. The litigation before the Honble High Court and the criminal proceedings against Shri P.N. Ram is yet to be concluded. But all those other details, are not relevant to the present proceedings, hence are not being narrated herein under.
9. In view facts and circumstances mentioned above, the applicant was accordingly issued memorandum of charges by the Commissioner, Central Excise, Kanpur, the Disciplinary Authority under endt. O. No. II (1)) Vig. /08/2003/241-42 dated 01.04.2003, wherein the following article of charges were framed against him which is extracted below:-
Article No. 1Whereas it is alleged that Shri R. K. Saxena, Inspector (now Superintendent) while functioning at ICD, Agra failed to discharge his duties sincerely and involved himself in a criminal conspiracy with all exporter, M/s Brij Impex International Agra to ;cause a loss to the Government Exchequer amounting to Rs. 70,55.690/- out of which Rs/. 51,22,596/- has already been fraudulently disbursed to the exporter as duty drawback.
Whereas it is alleged that the aforesaid officer has committed gross misconduct, has failed to maintain absolute integrity and devotion to duty and has acted in a manner unbecoming of a Government servant as enjoined upon him under Rule 3 (2) (i) (ii) and (III) of the CCS (Conduct) rules, 1964.
10. Shri D. K. Soni, Deputy Commissioner was the last Enquiry Officer who concluded the inquiry proceedings and submitted his report to the disciplinary Authority on 25th July 2008 (Annexure-6).
11. The Disciplinary Authority, Commissioner Custom & Central Excise, Kanpur exonerated Mr. R.K. Saxena, Superintendent from the charge so leveled against him. It was stated in the order of Disciplinary authority dated 16.3.2010(Annexure-8): that N. B 01. An appeal against this order lies to the Chief Commissioner of Central Excise Zone, Lucknow within a period of forty five (45) days from the date on which a copy of the order appealed against is delivered to the Appellant.
N.B. 02. A copy of appeal should be forwarded by the Appellant to the authority which made the order appealed against and the fact of having done so should be clearly indicated in the appeal itself.
DISCUSSION AND FINDINGS of Disciplinary Authority:-
I have carefully examined the facts of the case. Memorandum of charges, the report submitted by Inquiry officer and representations of the charged officer on the matter.
The Inquiry Officer in his enquiry report discussed that the only allegation of procedural irregularities against Shri R. K. Saxena is that he assessed the shipping Bill Nos. 1749-50:2370-79 and 2620-2630. the perusal of photocopy of the Shipping Bills revealed that he had only processed these Bills and not assessed the same. The Inquiry Officer further stated that the charges of failure to maintain absolute integrity, non-devotion to duty and acting in a manner of unbecoming of Government servant leveled against Shri R. K. Saxena were not proved.
I agree with the findings of the Inquiry Officer and find that the actions of Shri R. K. Saxena, Inspector (now Superintendent), as narrated above, are not against the revisions of Rule 3 (1) (i), (ii) and (iii) of the CCS (Conduct) Rules 1964.
ORDER In view of the foregoing discussion and findings, I exonerate Shri R. K. Saxena, Inspector (now Superintendent) from the disciplinary proceedings initiated against him vide Memorandum of Charge-sheet dated 01.04.2003.
12. However, the Chief Commissioner disagreeing with the disciplinary Authority, decided to issue on 02.08.2010 a show cause notice under Rule 29 of CCS (CCA) Rules, 1965 read with order F No. C-11016/2/2007-A. dated 13.7.2010 (Annexure-9) calling upon the applicant to show cause as to why the penalties as specified in Clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules, 1965 may not be imposed on him on the following grounds:-
(a) Disciplinary Authority has failed to exercise the power vested in him in not differing with the Inquiry Report dated 25.7.2008, submitted by Shri D.K. Soni, in as much as the Disciplinary Authority failed to appreciate that the proceedings under provisions of Customs Act are for different purposes, are on different lines and in not merely imposing the penalty on Shri R. K. Saxena, he does not automatically stands exonerated form the charge of gross misconduct of failing to maintain absolute integrity and devotions to duty as well as acting in a manner of unbecoming of a government servant as it was enjoined upon him under the provisions of Rule 3 (i) (I), (ii) and (iii) of CCS (Conduct ) rules 1964. the standard and the quantum of proof as evidences are different than the standard of proof and degree of evidences in the matter of misconduct while deciding the nature of gravity of misconduct between the master and a servant. The disciplinary authority was swept away by the perfunctory findings of the Inquiry authority with reference to the charge that procedural irregularities were committed by Shri R. K. Saxena while assessing the Shipping bills Nos. 1749-50:2370-79 and 2620-2630. The Inquiry Authority and for that matter the disciplinary authority were not able to distinguish and differentiate between phraseology of processing the bills and assessing the bills. In fact the set of officers in three tier system do contribute at each stage in process of assessment. It is the Inspector, who picks up the shipping bills, the packing list invoices and all other material documents have look to that and recommends being satisfied to his onward who may be competent to assess under his own signatures or he may further forward it to his senior officers. Shri R. K. Saxena, when processed the bills, then obviously, he was a strong link in the assessment of the bills. Drawing distinction between processing and assessment is misplaced and was not warranted. From such differences, the liability of verification of documents, at first hand, as has been pointed out in the Honble Tribunal order No. c/391-392/2009 CU(DB), dated 17.8.2009 cannot be shifted to the head of importer. This order of the Tribunal was passed on appeal filed by aggrieved parties against the CCE, Kanpur order in original issued on 30.12.2005 wherein Shri R. K. Saxena was also one of the noticee. The Tribunal had observed that there had been serious lapses on the part of Shri R. K. Saxena and it was he who played a major role in the fraud. The series of serious lapses as pointed out by the Honble Tribunal, being an Appellate and higher authority than the disciplinary authority had observed as under:-
(i) no objection being raised by any officer when while the export goods were affixed with brand name Dalbros the supporting manufacturer declared on the shipping bills was M/s Talbros Industries Ltd. Faridabad, the manufacturer of well known Talbros brand gaskets;
(ii) in the GR form accompanying the shipping bills, Punjab Bank Ltd. Chandigarh being written in hand as the name of the Nodal Bank for remittance, without any objection being raised by any officer who checked those shipping bills;
(iii) not raising any objection to splitting up of consignment into a number of shipping bills with same exporter and same consignment, so that the drawback involved does not exceed rupees one lakh-the sanction limit for Superintendent and
(iv) not writing to Punjab Bank Ltd. When in respect of the consignment expected, the Bank Realization Certificates (BRCs) were not produced by the exporter even after two months from the date of export, clearly indicate the involvement of other officers also mentioned in the adjudication order. We, therefore, fail to under stand as to how except for Shri P.N. Ram, the then Inspector, ICD, all other officers specially Shri R. K. Saxena, have been exonerated by the Commissioner for the lack of evidences. When the statement of Shri Deepak Lalwani and Shri Rajesh Sharma, ;which are corroborated by statement of Shri R. K. Saxena have been treated as their (i.e. Deepak Lalwanis) and Rajesh Sharmas) true statements and on this basis they have been penalized, those statements cannot be discarded for deciding the question of penalty on Shri R. K. Saxena.. The Disciplinary authority therefore, had not critically perused the various statements against whom he imposed the penalty and failed to draw just , fair and equitable conclusion against Shri R. K. Saxena. He did not apply his mind and was got carried away in view of the cryptic inquiry report, which formed the basis of advice as was tendered by the CVC.
(b) In the matter of common proceedings against three officers three separate set of orders were passed by the disciplinary authority, in fact there ought to have been a common order against all the three charged officers. This shows non-application of mind on part of disciplinary authority, warranting revision of the order.
(c) The inquiry authority had failed to record the statements and he conveniently did not question the witnesses which were cited in the show cause Notices issued under the Customs Act based on investigation of DRI. The Inquiry Authority also failed to interrogate Shri R. K. Saxena about his confessional statement which has been already corroborated in the statement of Shri Rajesh Sharma and Shri Deepak Lalwani, which facts have taken into account by the Honble Tribunal as could be seen from its order. Therefore, the inquiry conducted by Shri D. K. Soni was per -say defective, leading to passing of a defective order in the common proceeding by the DA. IN fact the order in original, issued by the commissioner, Central Excise, Kanpur in duty demand and penalty proceedings ought to have being challenged as to the portion of not imposing penalty on other officers other than on Shri P. N. Ram. Even though the DRI insisted for review of the order dated 30.12.2005 passed by the Commissioner Central Excise Kanpur as conveyed by their letter No. DRI P No. Ci(INT) LRU/10 ICD Agra/2000/Pt 2017, dated 11.8.2006. But even if that had not been challenged, by that reason alone the misconduct of Shri Jagdish Singh and Shri R. K. Saxena can not be held to be non existent the Honble CESTAT in its final order No. C-10/2008 dated 17.1.2008, in the appeal against order in original No. 15-Cus/Adjk/05k dated 30.12.2005 at para 5 and 6 had very rightly and correctly had observed which is extracted as under:
5 We find that the statement of Shri Rajesh Sharma exporter implicates Shri R. K. Saxena. Inspector of Customs for abetting the exporter in respect of misdeclaration of the goods and for withdrawal of the undue amounts and it is also stated by the exporter that Shri R. K. Saxena is getting Rs. 2.50 lakh per container. Shri R. K. Saxena who was co-noticee in these proceedings but no penalty was imposed on Shri R. K. Saxena. The present appellant who was working as a Inspector of Customs withdrawn the samples and the same was shown to the higher authorities and he was directed to make the market inquiry and in his statement he admitted that as no body was found who gave trade opinion in respect of the similar goods, therefore, he requested Shri R. K. Saxena who was his colleague to help him. Shri R. K. Saxena obtained the trade opinions which were endorsed by him. We find that in the statement of exporter, there is no awarement that present applicant has done some thing for some consideration. Further, we find that as there is allegation of negligence and dereliction of duty only in the show cause notice and the Tribunal in the case decision relied upon by the appellant after relying upon the pervious decision held that failure to perform the duty of scrutinizing/examining the document as best be dereliction of duty and penalties under Customs Act are not sustainable.
6. In the present case, we find even in the show cause notice, the allegation is only negligence and dereliction of duty. There is no allegation that the same has been done for some consideration. In these circumstances, we find merit in the contention of the applicant. The impugned order is set aside and the appeal is allowed.
(d) From the facts and records of the case as well as in view of defective adjudication order in respect of three Inspectors dated 30.12.2005 passed by the Commissioner, Central Excise, Kanpur, the DA should not have exonerated Shri R. K. Saxena. Those were two sets of independent proceedings under separate provisions of law, rules and proceedings under separate provisions of law, rules and procedures. Self confessional statement Shri R. K. Saxena, corroborated in the statement of Shri Rajesh Sharma, Shri Deepak Lalwani, before DRI officers should not have been allowed to escape the attention of Inqiry authority and DA. Even, otherwise, thee cannot be conspiracy in isolation where only one person is charged. When the inspectors were delinquent and continued to be delinquent for a considerable period of time in same set of transactions, verification and in reporting in the matter of same export wherein the export were fraudulent, it cannot be held that only one officer was in conspiracy and the others were not .Even in law, strong piece of evidence, are required in the prosecution and in the penalty proceedings. But in the departmental proceedings, where their conduct has come under grave shadow and where their reliability lack of faithfulness and devotion of duty, stands amply demonstrated and severely wanting, as such evidences and proof are not required.
(e) In same lot of transaction and events if one is being prosecuted or the other one is going to be penalized for one of the major penalty, there appear to be no justification whatsoever that third one who had been clearly and severally indicated by CESTAT, as aforesaid, should be exonerated and be given clean chit.
13. In view of position stated in foregoing paras, Chief Commissioner, Customs, Central Excise and Service Tax issued notice dated 2.8.2010 to show cause as to why the order dated 16.3.2010 passed by Disciplinary authority be not revised and why one of the penalties specified in clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules, 1965 may not be imposed upon him. The applicant was directed to submit his written statement in his defence, if any within 10 days of the receipt of this show cause notice. If he wishes to be heard in person himself or through any authorized person by him (not an advocate) then for that the date fixed was 20th August 2010 at 4PM at the office of the Chief Commissioner, Lucknow Zone.
14. Instead of submitting his written statement to the show cause notice dated 2.8.2010, the applicant filed a Writ Petition No. 1181/2010 before the Honble Allahabad High Court, Lucknow Bench against the said notice challenging the jurisdiction of Chief Commissioner, the Appellate Authority. The said Writ Petition No. 1181/SB of 2010 was considered by the Honble Allahabad High Court, Lucknow Bench. The Honble High Court passed an order dated 20.8.2010, the operative portion of which is extracted below:-
Keeping in view the facts and circumstances of the case, we permit the petitioner to file objections against the impugned notice within two weeks from today. After, receipt of the reply from the petitioner, the Chief Commissioner, Customs, Centralize Excise shall decide the question which regard to jurisdiction raised by the petitioner as preliminary issue and communicate the order. Thereafter, he/shall proceed to adjudicate the controversy on merit expeditiously.
15. The Chief Commissioner in compliance with the Honble High Courts order dated 20.8.2010 passed impugned order dated 31.8.2010. Relevant portions of the order dated 31.8.2010 are extracted below:-
3. Whereas, before submitting to the proceedings Mr. R. K. Saxena filed a Writ Petition No. 1181 of 2010 before the Honble Allahabad High Court, Lucknow Bench, against the said notice which was considered by the said Honble Court. The Honble Court passed an order on 20.8.2010 whose operating portion reads as follows:-
3. Keeping in view the facts and circumstances of the case, we permit the petitioner to file objections against the impugned notice within two weeks from today. After, receipt of the reply from the petitioner, the chief Commissioner, Customs, Centralize Excise shall decide the question which regard to jurisdiction raised by the petitioner as preliminary issue and communicate the order. Thereafter, he/shall proceed to adjudicate the controversy on merit expeditiously.
4. Whereas Mr. R. K. Saxena, Superintendent vide his letter dated 27.8.2010 submitted that his objection regarding assuming the jurisdiction on part of the Chief Commissioner, Central Excise, Lucknow Zone stands challenged and that being the preliminary issue, but a vital issue of jurisdiction, needs to be addressed and decided first and foremost.
5. Mr. R. K. Saxena, has referred to the provisions of Rule 29 of CCS (CCA) Rules, 1965 as well as the CBEC order issued under F. No. C-110160/2/2007 Ad. V dated 13th July, 2010, without much elaborating and had expressed, as if, lack of jurisdiction and the authority of the chief Commissioner, i.e. whether he is competent to issue such an SCN reviewing the decision of the Disciplinary authority and that vital question should be decided first.
6. Now therefore, I have gone through the provisions of Rule 2 to 4; as well as Rule 29 of the CCS (CCA) rules, 1965 as well as the order of the Board dated 13th July, 2010, issued from F. No. C-11016/2/2007-ad. V. Classifying and clarifying the authority which has been designated form and after 13th July, 2010 onwards in the matter of Disciplinary Proceedings as disciplinary authority, appellate authority and reversionary authority From the scheme of the Rules of the CCS (CCA), 1965, it is clear that there is a three tier system of disposing of the disciplinary matter i.e. as a disciplinary authority, as a appellate authority and as a reversionary authority. That the major penalty cannot be imposed by an authority lower in the rank than the appointing authority. In the facts and circumstances of the case and in the mater pending before the undersigned by ways of issuance of the SCN dated 2.8.2010, the following facts are undisputed.
(i) On the date of launching of the disciplinary proceedings, the charged officer was a superintendent, i.e. a gazetted Gr. B officer and the disciplinary authority was also the appointing authority for the charged officer.
(ii) The disciplinary authority was directly subordinate to the under signed and was working under the control and supervision being immediate subordinate authority.
(iii) The reviewing authority is in higher rank than the authority who had passed the first i.e., the order-in- original which has been challenged by the said reviewing authority.
(iv) That in terms of the CBEC order dated 13th July, 2010, in case of Group B officer, gazetted or non-gazetted, the disciplinary authority is the Commissioner and the appellate authority is the Chief Commissioner. The third stage authority is the Honble President of India i.e. as a revisionist.
7. That the appellate authority and the review authority as contemplated under provisions of Rule 29 of CCS (CCA) Rules, 1965 would be same. Suo-moto or otherwise the Honble President cannot and should not assume the jurisdiction of a review authority having regard to the provisions and scheme of CCS (CCA) Rules, 1965 when there is an authority so designated as review authority in terms of CBEC order dated 13.7.2010.
8. On the date of issuing the SCN by the undersigned i.e. on 2.8.2010, the CBEC order dated 13th July, 2010 had come in effect. Therefore, against the order dated 16th March, 2010 issued by the Disciplinary authority exonerating Mr. R. K. Saxena having being not reviewed by any authority, and when such order had not been challenged by Mr. R. K. Saxena before any other authority, the undersigned has full jurisdiction and authority to revise the said order for the reason so stated in the said d show cause notice.
9. Since in the petition dated 27th August 2010 and 29th August, 2010 of Mr. R. K. Saxena, addressed to the undersigned had not advanced any legal valid or proper reason on the jurisdiction so exercised by the undersigned and since he has not requested for personal hearing, I hereby order that the undersigned had proper jurisdiction in terms of the provisional of Rule-29 ibid, read with the order of CBEC dated 13th July, 2010 and therefore, is very much competent to dispose of the SCN dated 2/8/2010 after receipt of the submission and after hearing him if he so desires.
10. Mr. R. K. Saxena, in view of the above is directed to submit his written defence, if any, and should appear before the undersigned office at 7- a, Ashok Marg, Lucknow, if he so wishes on 10th September, 2010 at 11:00 Am. The matter would, otherwise stands adjudicated soon after.
16. The applicant challenged the aforesaid order of the Chief Commissioner dated 31.8.2010 by way of another writ petition No. 1341 (SB) of 2010 filed on 7th September 2010 which was argued on 10th September 2010 and disposed of on 22nd September 2010 observing that-
Heard learned counsel for the petitioner, Sri Alok Kumar Tripathi learned counsel for Union of India and perused record.
Preliminary objection has been raised by Shri Rajesh Singh Chauhan that the petitioner has alternative remedy before the Central Administrative Tribunal. He relied upon the judgment of Honble supreme court reported in (2010) 4 SCC 554:Rajesh Kumar and another Vs. Hemraj Singh Chauhan and others. Submission of respondents counsel carry weight. Accordingly, we do not interfere in the impugned order.
However, it is provided that in case the petitioner approaches the Tribunal within two weeks along with application for interim relief, the application for intrim shall be decided by the Tribunal within a month from the date of filing of original application. So far as the original application is concerned, it shall be decided within four months. For a period of four months or till the disposal of the original application, whichever is earlier, status quo shall be maintained.
Subject to above, the writ petition is finally disposed of.
17. In view of directions contained in order dated 22.9.2010 passed by the Honble High Court, the Tribunal took up the matter on priority basis and dismissed the O.A. 419/2010 on 21.10.2010 finding no infirmity in the orders dated 2.8.2010 and 31.8.2010 passed by the Appellate Authority.
18. Thereafter the Appellate Authority passed an order of dismissal of the applicant on 28.10.2010. The order- in-revision dated 28.10.2010 has captured the later developments of the case in part C of the said order, the issues in Part D, the defence submissions in Part E, observations of opportunity for hearing in Part F, Discussion and findings in Part G and final order of dismissal in Part H. For record purposes, it is reproduced below:-
C. The later developments:
16(1). In view of the order dated 22.9.2010 of the Honble High Court, Shri R. K. Saxena (hereinafter referred to as Charged officer-C.O. ) have filed an O.A. No. 419/2010, dated 01.10.2010, before the Honble CAT, Lucknow Bench. In the said O.A. once again the maintainability of the order dated 31.8.2010 had been challenged before the Honble CAT, which was already challenged in the first Writ Petition filed before Honble High Court i.e. before passing the order dated 31.8.2010, on that very issue. In addition to issue of jurisdiction, all other points, facts and circumstances were brought through the impugned OA before the Honble CAT, pleading for interference and requested to set aside the notice and orders dated 2.8.2010 and dated 31.8.2010 respectively before the Honble CAT. The Honble High Court had given four months time for disposing off O.A. and two weeks for disposing off interim relief, if any. However, the Honble CAT disposed off everything within twenty days of its filing.
16(2) the Honble Tribunal through para 14 (ii) of its order dated 21.10.2010 (last lines); had held. Therefore against the order dated 16.3.2010 issued by the disciplinary authority exonerating Shri Saxena being not reviewed by any authority and when such authority has not been challenged by Shri Saxena before any authority, the chief Commissioner had full jurisdiction to revise the said order as claimed by him in the show cause notice. Therefore, the contention of the applicant that it was the President of India who was competent authority for passing such an order is devoid of any force.
(iii) The applicant counsel has not been able to show much less establish the violation of the applicants right to (a) know the case against him, (b) adequate opportunity to meet the case against him.
(iv) We have not found anything arbitrary or perverse in the steps being taken by Appellate Authority in accordance with CCS (CCA) Rules, 1965 and relevant instructions issued in this regard. Therefore, we do not find any scope; to interfere at present with the departmental proceedings which may continue in accordance with law.
(v) Accordingly, we do not find any infirmity with impugned orders dated 2.8.2010 and 31.8.2010 issued by the appellate authority. 16(3) In pursuance to the Honble CATs aforesaid order, the applicant , Shri R.K. Saxena, was served a notice in person, in the evening of 21.10.2010, intimating that the Honble CAT has given liberty to the Appellate Authority to proceed with the matter while directing the applicant not to delay in the proceedings on any objection or on procedural ground. The applicant was directed to cooperate with the department by way of submitting his written statement in his defence, if any, within four weeks etc. etc. In fact, the Tribunal bound the appellate authority, hand and foot, to dispose off the matter within two months from the date of filing of written statement by Shri Saxena, if any. Though the communication, dated 21.10.2010, the C.O.was once again informed, in terms of para 4 of said notice, that ample opportunities had been given to him for filing his written statement of defence, if any. That his written defence dated 18.9.2010 had been taken on record, would be duly considered along with his gamut of all submissions made before the Honble High Court as well as before the Honble CAT, as already stands referred herein above. It was also noted that Shri Saxena had not appeared on any date so fixed for personal hearing, from time to time. That the last and final opportunity is being given to him for personal hearing in the forenoon of 26.10.2010. But in the morning of 26.10.2010, a communication dated 25.10.2010 addressed by the Additional Commissioner (Vig.) Central Excise Commissionerate, Kanpur, was handed over to the Additional Commissioner (CCO), intimating that the notice of personal hearing had been served to Shri Saxena in the evening of 21st October, 2010. That the wife of Shri R. K. Saxena vide her letter dated 22.10.2010 had intimated that her husband Shri Saxena had got Myo Cardiel infraction in the early morning of 22nd October, 2010, that initially he got admitted at Kanpur Medical Centre, Lajpat Nagar, Kanpur. She had further informed vide her letter dated 25.10.2010, addressed to the Additional Commissioner P&V), Kanpur, where the CO is working of now, that her husband was shifted to Cardiology Hospital, GT Road, Kanpur from Kanpur Medical Centre, Kanpur and is at present in ICU. She also enclosed along with her letter a certificate, dated 25.10.2010, issued by Dr. R. K. Bansal, Professor and Head of Department Cardiology L.P.S. Institute of Cardiology, G.S. V. M. Medical College, Kanpur. She in last para of her letter, dated 25.10.2010, addressed to the Additional Commissioner (CCO), Lucknow requested to adjourn the personal gearing fixed for 26.10.2010 before the Chief Commissioner for some other suitable date after due recovery of Shri R. K. Saxena. Once again Shri Saxena failed to appear before the undersigned. Such development was perhaps apprehended by the Honble CAT. For such reasons appropriate directions were issued to him to cooperate with the on going proceedings. But Shri Saxena had deliberately chosen to delay and defeat the very purpose of the proceedings, as he is well aware that he is retiring on 31st July, 2011. Without commenting any way on the medical certificate, about the contents of the certificate and about the timing of his falling ill, to me it is intriguing. The CAT order was pronounced on 21st October, 2010 He had fallen ill and was initially got admitted at Kanpur Medical Centre, Lajpat Nagar, Kanpur in the morning of next day i.e. on 22nd October, 2010 that too ;after receipt of the notice of personal hearing. Thereafter he shifted to LPS Institute of Cardiology GSVM Medical College, Kanpur at some point of time on 22nd October, 2010 itself. However, the doctor certificate under heading To Whom It May concern was issued only on 25th October, 2010, as the hearing was fixed on 26th October at 11:00A.M. before the Chief Commissioner. In such circumstances, at the eleventh hour, such a letter is submitted to the Chief Commissioner for seeking an adjournment. One is left to judge the merit of a request for adjournment in the fact s and circumstances, read with the conduct of the notice, as stands recorded here in above, at appropriate places. To me, now the chances of recovery of Shri Saxena, before retirement is very bleak.
16(4) It was expected that Shri Saxena will definitely discover some device after CAT order, as his hoodwinking style and the behavior, as stands amply demonstrated by way of filing frivolous petitions in the Honble High Court and application in Cat. It would be clear to everyone that he had been and is avoiding to participate in the proceedings in person before the Reviewing Authority. There should be a limit to offer opportunity and outer limit for capping the proceedings, which is pending for more than a (even the C.O. will agree) decade. The facts in foregoing paras, will persuade anyone to conclude that more than sufficient opportunities have been afforded and given to Shri Saxena to defend his case. Infact he had defended also. All the referred and relied on documents were already in his possession as those had formed the very basis for the two petitions before Honble High Court and one application before Cat. Therefore, there is nothing and there cannot be anything by which it can be inferred or concluded that there had been denial of principle of natural justice to Shri Saxena. Apparently, when the full grounds has been disclosed and the entire materials likely to be used against him and been brought to his notice, it appears to be that he has no material in his favour by which he can demonstrate or demolish the grounds on which notice dated 2.8.2010 had been issued. Very emphatically, I conclude that Shri Saxena is deliberately using the dilatory tactics and as if making the mirage to appear to someone that there has been a denial of principle of natural justice or he has not been given adequate and ample opportunity to defend himself. There should be an end for everything.
D. The issues:-
17. The fundamental question in these proceedings are whether the exoneration of C.O in view of the Charge Memo dated 1.4.2003 issued by the Disciplinary Authority but finally exonerated by him vide order dated 16.3.2010 is according to law, just and fair, or it warrants review as proposed in the facts and circumstances and on the material evidences brought on record vide notice dated 2.8.2010. the preliminary issue regarding assumption of jurisdiction on the part of the authority issuing such notice have already been decided, which had been upheld by the Honble Tribunal in O.A. No. 419/2010, dated 21.10.2010.
18. In the Charge Memo it was imputed that the CO while working as an Inspector had committed gross misconduct, failed to maintain absolute integrity and devotion to duty and has acted in a matter unbecoming of a government servant, as he was enjoined to abide by the provisions of Rule 3 (1) (1), (ii) of the CCS (Conduct) Rules, 1964. In Annexure II to the Memo, the details of the imputation stands narrated; through Annexure III and IV such charges were proposed to be proved. In Annexure III and IV, it is the show cause notice dated 28.9.2001, issued by the Deputy Director, DRI, Lucknow which had been referred and relied on. In the Inquiry Report submitted by Shri Soni, Assistant Commissioner, dated 25.7.2008, had concluded that Failed to maintain absolute integrity-charge not proved non devotion to duty and has acted in a manner of unbecoming of a government servant- charge not proved non devotion to duty and has acted in a manner of unbecoming of a government servant- charge not proved. However, CVC vide its OM dated 18.12.2003, while tendering its advice about the departmental officers had observed- the Commissioner has proposed for minor penalty against Shri Jagdish Singh, Superintendent . However, it is evident from I.Os report that Shri Jaddish Singh was negligent in accepting a deficient market inquiry report of 6.9.2000 of valuation of the Gaskets, as the market report itself indicated that there was no market for the offending goods at Agra, and despite export of ;such items being made for the first time from ICD Agra. Such action has prejudiced revenue interests to the extent that consequent to acceptance of the deficient market enquiry report of 6.9.2000, 69 Shipping Bills of Aug/Nov. Dec. 2000 were cleared at the declared value of the gaskets as being identical items to the first export and duty drawback of Rs. 37.18 lacs was assessed and released by ;the CO. As referred in the Adjudication order of 30.12.2005, the exporters, whose ongoing fraud from August 2000 onwards was detected by DRI in March 2001 admitted that gasket consignments and exported earlier were also of junk value of Rs. 5 per set as against accepted valuation of Rs. 170 per set. Commission advises that major penalty is warranted to be imposed upon Shri Jagdish Singh as his negligence caused revenue loss. Even after receipt of such advice for imposing major penalty, the DA had once again made a proposal dated 16.3.2010 to CVC via DG (Vig.), CBEC. However, due to intervention of the Chief Commissioner the proposal of the DA was over-ruled by DG (Vig) and ultimately a major penalty was imposed on Shri Jagdish Singh on 1.9.2010 i.e. in confirmation to CVC advice. It means the inquiry Authoritys report and recommendation of Disciplinary authority ;was not acted upon by the CVC. Similarly in case of Shri Saxena, though DA agreed with the inquiry Report but the authority exercising review power holds a contrary view, which was expressed and was brought to the notice of CO had, rushed to the Honble High court by two WP and again through CAT.
E The Defence Submissions:
19. The C.Os submission as could be seen from his pleadings filed, from time to time and brought on record, as annexed to his two Writ Petitions of August and September 2010 filed in Honble High Court and O.A. in No. 419/2010 filed before the Tribunal read with his written submission dated 18.9.2010, addressed to the Chief Commissioner in response to notice dated 2.8.2010 could be summarized as under:
(i) The inquiry authority had concluded that both the charges are not proved which was accepted by the DA as CVC had also upheld the advice of the Inquiry Officer (IO).
(ii) That he was not an assessing officer in the material period for the shipping bills though the process of documentation was carried out while exporting the consignments and on the basis of which draw back was sanctioned. Hence, as if he cannot be held responsible.
(iii) That the market inquiry report was not submitted by him to the superintendent. That the final assessing authority was the superintendent. That just to defame and torture him, the authority had issued a notice. That he is retiring within the next 10 months and that his statement was recorded under duress pressure and coercion by the DRI Officers. That the CBI had not prosecuted him. That the adjudication officer of the commissioner, central excise, Kanpur in so far not imposing a penalty under Customs Act on him have been accepted by the Committee of the Chief Commissioner etc. OBSERVANCE OF OPPORTUNITY FOR HEARING;
20. (i) After the issuance of the notice, proposing to revise the order of the Disciplinary Authority, COs defence reply was sought for. As could be seen from the foregoing paras, instead of frequently rushing before the High court and CAT, the C.O had not chosen by causing any format or informal appearance before the undersigned, though he submitted his reply vide his letter dated 18.9.2010. Observance of the principle of natural justice is the cardinal principle of rule of law. In quashi judicial proceedings, the right of hearing had to be respected, but it is not an unruly horse. The essence of principle of natural justice is that one should not be condemned unheard or one should not be hit below the belt. In C.Os case there was an open inquiry where the charged officer was given ample opportunity to advance and adduce his point of view and that had formed the record of case proceedings. On preliminary issue of jurisdiction, an order has already been served on C.O. After notice of 2.8.2010, many opportunities were given to him for hearing but he had chosen not to appear. No one can wait endlessly. Even, whatever point he has made in his defence or in the 3 petitions before the High Court and Cat, all those I have taken into account and I have given my cool considerations on all such points/submissions and arguments.
(ii) These are the proceedings in review i.e. exercising a statutory powers while proposing to revise the penalty for which sufficient reasons has been disclosed in writing. If the CO has decided not to cause an appearance making his submissions much more or so called exhaustive, then it is his attitude and outlook. I am proceeding to dispose off this matter through this reasoned and speaking order. Infact, the High Court had initially ordered that soon after the decision of the preliminary issue relating to jurisdiction, the chief Commissioner will proceed to decide the mater expeditiously. But the CO has chosen to create road blocks and as if obstructing the exercise of statutory functions of the Chief Commissioner. It is not possible in every case to lay down the rigid rules of principle of natural justice. It will depend upon the facts and circumstances of the each case. The essence is that the authority had to apply the rule of fair play and real flexibility. The course of justice should not be allowed to be derailed on technical infringement of natural justice. Only the attainment of fairness had to be ensured. The real observance of principle of natural justice is the duty 0f adequate disclosure and affording a fair opportunity affair opportunity to all parties in controversy for correcting or contradicting anything prejudicial to the affected parties. It is not one way street. The C. O. had been given ample opportunity. On one hand, as extracted from his reply herein above the CO submit that his counsel is on bed but on other had his three sets of counsel, at three stages i.e. before the High Court and CAT had prepared Writ Petitions and briefs running in hundred pages along with annexure etc. However, his fourth counsel appears to be on bed, till date. The CO cannot be allowed to challenge that the Chief Commissioner Office is not an independent one or is not an impartial Tribunal. The rule of reasonableness and fairness has been fully observed in these proceedings. In my view, no prejudice had been caused to the cause of the CO as after affording full and adequate opportunity, the matter is now hereby decided on merits of the case on available records and after analyzing his submissions as advanced from time to time and brought on record.
E. DISCUSSION AND FINDINGS:
21 (i) It is not true to say that the CO was exonerated by the CBI. The fact is that the CBI was not in a possession of sufficient reliable evidences for nailing the CO down before the Criminal Court of law in a trial proceeding. That was the reason that prosecution was recommended only against Shri P.N. Ram and not against other three departmental offenders. But CBI had strongly recommended for department action against all the four officers. Therefore, the submissions that the C.O was not prosecuted, for that reason alone, he cannot be exonerated from penalty in a departmental proceedings. In the same set of events, one had been conveyed government displeasure, the other is being prosecuted by the CBI in Special CBI Court at Gaziabad and on the third, a major penalty had already been imposed, then how is it that Shri Saxena, the fourth one, should be exonerated.
(ii) The order-in-original was passed under the provisions of the Customs Act which had been accepted by the committee of the Chief Commissioners. In other words, one can infer to say that it was not chosen by the committee of chief Commissioners to challenge only that part/portion of the order under which three departmental officers were not penalized under the provisions of Section 114 of the Customs Act, because one out of the four the officer (Shri P.N. Ram) was already penalized for Rs. 25,000/-. In fact 99% of the order of the Commissioner dated 31.12.2005 was in favour of the department as all the other noticees were heavily penalized and the exporter was also penalized for Rs. 20 lacs in addition to adjudging the liability of interest and the principal amount of more than Rs. 52 lacs. When the Memo of charge was already issued against the departmental officers under the provisions of CCS (CCA) Rules, 1965 and the inquiry was going on, the committee of Chief Commissioners had chosen not to assail the order on its fringe as the departmental officers were already facing the departmental trial where more penalty was likely to adjudged. For that reason it was not reviewed, even though it was recommended by the DRI Authorities that department should file appeal for imposition of penalty even against the other three departmental officers. But on appeal of Shri P. N. Ram, even the penalty of Rs. 25,000/- imposed on him was set aside by the Tribunal. As observed in the notice of the undersigned dated 2.8.2010, the departmental proceedings against the officers and the and the proceedings against the smugglers, drug traffickers and evaders are on different scale of evidences and on doctrine of strict liability. Not proceeding under the provisions of Customs Act, or resulting their exoneration in such proceedings cannot be considered as an immunity from the charge of mis-conduct, from the charge of dereliction of duty, not maintained absolute integrity. Between the government and its employer, it is a relation of master and servant. Therefore, on this ground no relief can be extended to C. O.
(iii) It is worth noticing that the Charged officer in his deposition dated 07 06 2001 before DRI officers in answering to question No. 10 had deposed ..ftl gsrq export dh tkus okyh goods dks mis-declare djuk rFkk dher maph j[kh tkuh FkhA bl scheme ds eqrkfcd yxHkx 3 #0 dh Gasket ij cgqr T;knk value declare djds dher dk djhc&2 10 xquk drawback calim djuk FkkA bl scheme esa esjh lgefr ds ckn igyk export vxLr ekg esa gqvk vkSj fQj Nov. 2000 rFkk Dec.2000 vkSj Feb. 2001 esa gqvkA bu lc export ds ckjs esa tks fraud gqvk gS mldh eq>s igys ls iwjh tkudkjh Fkh vkSj eq>s izR;sd export ds gksus ds ckn iSlk feyrk Fkk vkSj ckdh staff ds fy, Hkh eq>s iSlk feyrk FkkA iwNus ij eSa c;ku dj jgk gwW fd eq>s #0 2-50 yk[k izR;sd dUVsuj feyrk Fkk ftlesa ls eSa 50]000 #0 v/kh{kd egksn; Jh txnh'k flag dks eSa Lo;a nsrk Fkk ftldk og vkxs D;k distribution djrs Fks eq>s Kkr ugha gSA ckdh dk 2 yk[k #0 eq>s cprk FkkA. This statement was recorded by the DRI officials, who are also the departmental officer, when CO was not under custody. This was a voluntarily admission recorded during the proceedings under provisions of Section 108 of the Customs Act. Per say, it is admissible as piece of evidence. All along it had been held up to the Supreme Court that such statements are admissible and acceptable. That the Customs officers are not police officers and the offenders are foretold and cautioned before recording their statement that they have to make true and correct deposition as the same would be used against them. Still the Charged officer made such statement because those were true. On appeal against the Commissioner order, by the inspector Shri P. N. Ram, who was penalized for Rs. 25,000/-, the CESTAT had observed-
(a) no objection being raised by any officer when while the export goods were affixed with brand name Dalbros the supporting manufacturer declared on the shipping bills was M/s Talbros Industries Ltd., Faridabad, the manufacturer of w ell known Talbros brand gasket;
(b) in the GR form accompanying the shipping bills, Punjab Bank Ltd, Chandigarh, being written in hand as the name of the Nodal Bank for remittance without any objection being raised by any office who checked those shipping bills;
(c) not raising any objection to splitting up of consignment into a number of shipping bills with same exporter and same consignee, so that the drawback involved does not exceed rupees one Lakh- the sanction limit for Superintendent and
(d) not writing to Punjab Bank Ltd, when in respect of the consignment exported the Bank realization Certificates (BPCs) were not produced by the exporter even after two months from the date export, clearly indicate the involvement of other officers also mentioned in the adjudication order. We, therefore, fail to understand as to how except for Shri P.N. Ram, the then Inspector, ICD, all other officers specially Shri R. K. Saxena, have been exonerated by the Commissioner for the lack of evidence. When the Statement of Shri Deepak Lalwani and Shri Rajesh Sharma, which are corroborated by statement of Shri R. K. Saxena have been treated as their (i.e. Deepak Lalwanis and Rajesh Sharmas) true statements and on this basis they have been heavily penalized, those statements cannot be discarded for deciding the question of penalty on Shri R. K. Saxena.
(iv) The Honble CESTAT had not manufactured above observations on its own rather these observations are borne out of the records of proceedings and are part of investigation conducted by the DR. Shri Rajesh Sharma alias Sandeep Jain alias Sudeep Jain S/o Shri Gopal Prasad Sharma, in his statement dated 15th May, 2001 recorded by Shri S. R. Sharma, SIO, DRI at page 4 of such statement have deposed eq>s igys consignment esa 1#0 izfr xsldsV rFkk uoEcj ds ckn 2#0 izfr gasket ds fglkc ls payment feyrh Fkh vkSj uhjt dqekj >kath dks Hkh blh vuqikr esa payment feyrh FkhA blds vykok ICD Agra esa rSukr custom ds Inspector Jh R.K. Saxena izfr consignment ij 250000@& #0 uxn fn;s tkrs Fks D;ksafd Jh lDlsuk dh tkudkjh esa ;g export dk fraud gks jgk Fkk vkSj Jh lDlsuk dh Jasmeet vkSj Kuldeep ls iSlksa ds ysu&nsu dh ckrphr Vassapa Cargo ds Deepak Lalwani us djokbZ FkhA nhid dk lDlsuk th ds lkFk yxkrkj mBuk&cSBuk Fkk RkFkk bu nksuksa dks bl dpjk gasket dk cgqr T;knk ewY; ij export djus ds [ksy dh iwjh tkudkjh FkhA
(v) The DRI investigation leading to SCN dated 28.9.2001 have made the basis of all such statements as evidence ;and on the basis of the same all those persons were penalized under Customs proceedings as the notice was the basis for arriving at the conclusion about the dereliction of duty, disloyalty and not maintaining absolute integrity or displaying the conduct of unbecoming of a Government servant, which was slapped on the officer including on Shri Saxena. It is the inquiry authority who has ignored all such material available on record and concluded that the charge has not been proved against Shri Saxena,. The charges based on evidence were grave in as much as on the depositions and versions of all players namely Shri Rajesh Sharma, Shri Neeraj Kumar Jhanjhi, Shri Kuldeep Kumar Jhanjhi, Shri Jasmeet Kohli, Shri Deepak Lalwani, who were penalized by the Commissioner. It was only Shri Saxena out of all departmental officers, who was immediately arrested, remained in jail and was bailed out subsequently. Thus the offences of abetment in smuggling, aiding and advising the fraudulent exporter by such officer and lightly been adjudged by the adjudicating officer, having a soft corner for the departmental officer. Otherwise, as a person all such officer ought to have been penalized but were not penalized, as it was expected, that on each of them a major penalty would be imposed in the departmental proceedings. But the exoneration of Shri Saxena in the proceeding before Commissioner under the provisions of Customs Act formed an escape route for the inquiry officer, who allowed him to get away from serious charges as were imputed in the charge memo. The inquiry officer pretended (or deliberately ignored) to be unaware about the provisions of Customs Act and about the procedures which are adopted ;at ICD while inspecting, examining and assessing the documents and the goods relating to export wherein drawback were claimed. Any customs officer of ordinary prudence and intelligence, had the under standing and knowledge as how the shipping bills are noted by someone, are examined with reference to invoices packing lists etc. by other and is being passed by someone else. There is an integrated link of chain while passing the documents and the goods out of charge or let for export order. It is not true to say that there was only an allegation of procedural irregularity in as much as the C.O. had only processed the shipping bills No. 1749-50,2370- 79 and 2620-30 and has not assessed the same. It is worth noticing that the assessment is done only after processing. The process is done by inspector/examiner and the assessment is done by superintendent. It means the inspector has checked the description, quantity, quality and value etc. on record or on physical inspection and then he forwards the same to his boss who is a superintendent or may be Assistant Commissioner. Then they sign the document as if assessed. Therefore, making a case of exoneration on the ground that Shri Saxena has only processed the bill and not assessed it cannot be allowed to escape from the liability of serious misconduct. It is too much to be expected by an Inquiry Officer of Customs department, who will innocently make such hair splitting on processing & assessment.
(vi) The charge of failure of maintaining absolute integrity, lack of devotion to duty speaks volume in the facts and circumstances of the case. What more proof is required when the export fraud was going on continuously for 5 to 6 months and the officers, as if, had closed their eyes. If it is not failure to maintain absolute integrity and conduct of unbecoming of a Government servant for those who are working on economic frontier of the country, then what else it could be.
(vii) The Officer working as presenting officer and the inquiry officer did not do justice with the inquiry. The disciplinary authority ought to have critically examined the charges levied against the officer and should have issued a note of disagreement instead of causally and leisurely accepting the inquiry report and ordering for exoneration.
22. The inquiry authority failed to record the statement of Shri R. K. Saxena and confront him, who had made the statement before the DRI authority which had been corroborated by the statement of Shri Rajesh Sharma and Shri Deepak Lalwani. Such facts had been noted adversely by the Honble Tribunal in its order dated 17th August 2009. Shri R. K. Saxena was not a party before the Tribunal, true, but by that reason alone it cannot be said that the Tribunal had observed as stand extracted herein above out of text and context. The Tribunal observations and comments against Shri Saxena are the material part of the case record. It has not been controverted by Shri R.K. Saxena or by anyone else. Infact, the Honble Tribunal while disposing the appeals of the exporter ;and of those others who were penalized had even earlier observed in its order dated 17th January, 2008 as under_ We find that the statement of Shri Rajesh Sharma, exporter implicates Shri R. K. Saxena, Inspector of Customs, for abetting the exporter in respect of mis- declaration of the goods and for withdrawal of the undue amounts and it is also stated by the exporter that Shri R. K. Saxena is getting Rs. 2.50 lakh per container. Shri R. K. Saxena in his statement admitted these facts. We find that Shri R. K. Saxena who was co-noticee in these proceedings but no penalty was imposed on Shri R. K. Saxena. The present appellant who was working as a Inspector of Customs withdrawn the samples and the same was shown to the higher authorities and he was directed to make the market inquiry and in his statement he admitted that as no body was found who give trade opinion in respect of the similar goods, therefore, he requested R.K. Saxena who was his colleague to help him. Shri R. K. Saxena obtained the trade opinions, which was endorsed by him. We find that in the statement of exporter, there is no averment that present applicant had done some thing for some consideration. Further, we find that as there is allegation of negligence and dereliction of duty only in the show cause notice and the Tribunal in the case decision relied upon by the appellant after relying upon the previous decision held that failure to perform the duty of scrutinizing/examining the document as best be dereliction of duty and penalties under Customs Act are not sustainable.
(ix) In the present case, we find even in the show cause notice, the allegation is only negligence and dereliction of duty. There is no allegation that the same has been done for some consideration. In these circumstances, we find merit in the contention of the applicant. The impugned order is set aside and the appeal is allowed.
23. (i) Having regard to the facts and circumstances of the case and with regard to the conduct and behavior of a man in such situation even the negligence and dereliction of duty which has cast heavily on public revenue through a perpetuated fraud cannot be taken so lightly rather it had to be taken very seriously. To me , it appears that from the very beginning a misplead sympathy wave was got created in favour of some of the departmental officers through uncalled for canvassing . By the charge memo was issued, the gravity of the charges, were somehow, as if, got diluted as the heat of investigation was over by the time, the domestic inquiry was conducted: show cause notice was got issued , appeal were got filed. It is clear that by passing of time all the affected one started feeling that Justice delayed is Justice denied
(ii) The departmental proceeding was an independent proceeding under the provisions of CCS (CCA) Rules, 1965. The charge of criminal conspiracy on which Shri P. N. Ram is being prosecuted cannot be in isolation i.e stand alone against him. When fraud continued for considerable period of time when there was one superintendent and three inspectors whose duty were being changed or rotated from time to time at ICD, Agra, it cannot be presumed they were not in league, as if they were not aware what was going on in case of export being made by M/s Brij Impex International. In fact, Shri Saxena was the kingapin in the entire scheme in admitting, swallowing heavy fraudulent drawback amount in a short period, to the tune of more than Rs. 52 lakhs, where crores of Rs. The goods were confiscated absolutely which were on the verge of export i.e. at Mumbai dock.
(iii) The plea that the market report was not signed by Shri Saxena does not absolve him from the clutches of the charges. Anyone who is aware of the functioning of the ICD and about its officers working thee, knows that the inquiry is made by inspector but the report is prepared by senior officer on the oral and written submissions of such officer. Therefore, merely by not signing such market report the CO cannot be allowed to escape from the charge of dereliction of duty and of a conduct shown of unbecoming of a Government servant.
(iv) Opinion are opinion because those are opinion. Somebody else prepares a brief of a case and on that the other advises. In this entire case, correct versions and facts were not brought to the notice of CVC. Therefore, the advice of CVC stands vitiated. No proper material and fact were brought to the notice of CVC. Therefore, an inappropriate advice landed at the table of disciplinary authority. However, the CVC advice cannot bind, hand and foot, the appellate and review authority otherwise; such authority would be rendered redundant while being vested with statutory jurisdiction, power and authority to exercise the power of review or revision in interest of justice and fair play.
(v) The retirement date of the CO, ipso-facto, does not make a ground or a mitigation circumstance against the charges so established against him. The provisions of civil rules do not take into account such facts. In fact such proceedings go on even after retirement.
(vi) The question of any bias or prejudice against the CO, on part of undersigned, does not arise at all. The undersigned after studying the materials available on case record had arrived to the conclusion that the course of justice will remain derailed if such officer escape the major penalty for such misconduct, dereliction of duty under such circumstances which have lead to loss of a huge Govt. revenue. The undersigned is not arriving at this conclusion solely on the basis of the observations, comments and findings of the CESTATs in its two orders-in- appeals as noted down and extracted at para 9 of notice dated 2.8.2010. The CO is not correct when he submits in his 9 page written reply dated 18.9.2010 in response to notice dated 2.8.2010 that his deposition is not admissible in view of provisions of Section 25 and 26 of the Indian Evidence Act. Looking to the contents of the statement dated 7th and 8th June, 2001, any person of ordinary intelligence and prudence is bound to conclude that it was a voluntarily statement. The contents of the said statement itself reveals that it cannot be under pressure, duress or coercion and for that reasons it had been quoted with approval by the Honble CESTAT in their two orders. I find myself in full agreement with same.
(vii) The submission of the CO that bank receipt certificate was not produced by the exporter even after 2 months from the date of export was neither in his knowledge nor was within his duty list, is not true and hence not acceptable. Such admissions are not expected from an inspector posted at ICD. Such is a calculated submission with a motive to save his skin. Against the findings and observations of the CESTAT, the CO had not been able to make any submission, which could even can create any iota of doubt on those observations and findings of the CESTAT.
(viii) On one hand, while making submission on para 4 of the notice dated 2.8.2010, the CO had submitted that Neither the exporter nor Sri P. N. Ram had ever appealed against the findings of the adjudicating authority recorded against him (C.O) as he ;was not a respondent before the CESTAT. If that is the case, then Shri R. K. Saxena should have himself filed appeal in the High Court for expunction of the alleged adverse findings and observations recorded against him by the Honble Tribunal. He had ;not elected to do so. In fact, the adverse findings recorded against CO, by the Honble CESTAT was in two orders out of two appeals filed separately by two aggrieved party which were disposed off by two separate bench, consisting of different Honble Members.
(ix) The CO appears to be ill informed in his reply that the SCN proposes for imposition of penalty under Rule 11 of CCS (CCA) Rules, 1965, ;whereas he was charged under the Memo for imposition of penalty under Rule 3 ibid and that attempt for imposing penalty in guise of Rule 11, is patently erroneous and without jurisdiction. Perhaps the C.O has not bothered to read the provisions of CCS Conduct Rules 1964 and the provisions of CCS (CCA) Rules, 1965. In the charged momo the proposal was for imposition of major penalty for contravention of provisions of Rule 3 of Conduct Rule 1964. The Rule 3 of the Conduct Rules 1964 does not provide for imposition of any penalty in itself. The provision for imposing penalty is available only under Rule 11 of CCS (CCA) Rules, 1965. Hence, this in incorrect/improper submission so made for want of knowledge about the relevant provisions of the rules on part of the CO.
24. His full reply had been gone through by me which are available in his three petition made before the High Court and before CAT. He had specifically never asked for any personal hearing before the undersigned in any of communications addressed to undersigned. As and when, rather many times, when given, deliberately he chooses not to appear. Even otherwise at IInd stage of appeal /review, right of hearing is not a must.
25. In view of the foregoing discussion and findings and having regard to the material facts and evidences available on records read with reasons recorded by me in my notice dated 2.8.2010; I conclude that the charge of not maintaining absolute devotion to duty, dereliction of duty and displaying the conduct of unbecoming of a Government servant which has lead to huge loss to Government revenue and serious disrepute to Customs department at ICD, Agra, stands fully vindicated, established and proved. Thus, I hold that the DAs exoneration order dated 16.3.2010 is not correct, is illegal and in facts and circumstances of the case and hence is not sustainable. It needs to be revised in as much as one of the major penalties had to be imposed on CO.
26. The disciplinary proceedings were initiated against the departmental officers, including Shri Saxena, for major penalty after having been arrested by one of the investigating agency of the department and only on recommendation of CBI. The then Superintendent, Shri Jagdish Singh, had been visited with one of the major penalty. Shri P. N. Ram had been charge sheeted by the CBI and is facing criminal prosecution for offence of conspiracy along with other charges. Looking to the entire facts and circumstances of the case, when a fraud had been committed prima-facie with the connivance of the departmental officers, which continued for a considerable period of time and which led to loss of revenue to the government for more than Rs. 50 lacs. The misconduct of the CO was grave and very serious. The CO was involved to such an extend that, till date, it could not be learnt as who were behind the mask of M/s Brij Impex International. The tips and tools were provided by the departmental officers. Obviously the kind and degree of proof and the standard of proof in criminal proceeding is on different footing and are on higher pedestal. The same standard cannot be expected or be adopted for departmental proceedings. There is complete loss of confidence in them as could be abundantly be seen from facts of case. Had there been concrete documentary evidence, unearthed by the investigation agency to nail them down, then they all could have been subjected to criminal proceedings. After all offences are done, in the darkness of night, in secrecy and in conspiracy. It was thought to be an appropriate mode to deal with them in the departmental proceedings. On cost of repetition, I do not wish to load this order by extracting repeating or reproducing all those materials which are against them for making a firm view that they were fully involved. Shri Saxena was neck-deep involved in that conspiracy and fraud. There is no need for any more conclusive proof for the proceeding before me. Therefore, having regard to facts and circumstances of the case, on proven misconduct, dereliction of duty, lack of devotion to duty and exhibiting a serious conduct of unbecoming of government servant, I hold that Shri Saxena should be slapped with the extreme major penalty as provided under Rule 11 (ix) of CCS (CCA) Rules, 1965. There are no mitigating facts and circumstances warranting any lesser quantum of penalty. Hence, the following order:
H. The Order:
In view of the facts and circumstances of the case, as detailed here-in-above, and the discussions and findings so recorded, I hereby hold that the order of the Disciplinary Authority, dated 16.3.2010, exonerating the CO was not a just, fair, legal and proper. Therefore, it is hereby set aside in full and the major penalty of dismissal form service is hereby imposed on Shri Saxena under the provisions of Rule 11 (ix) of the CCS (CCA) Rules, 1965 w.e.f. 28.10.2010. Accordingly, all other consequences arising out of such dismissal from service of Shri R. K. Saxena will follow with immediate effect.
19. The applicant challenged the order of this Tribunal dated 21.10.2010 as well as order of dismissal dated 28.10.10 before Honble High Court by filing W.P No. 1694/2010. The Order of the Honble High Court dated 12.11.2010 is extracted below:-
After the judgment aforesaid of the Tribunal, an order of dismissal of service has been passed on 28.0.2010.
An objection has been raised by Sri Rajesh Singh Chauhan appearing for the respondents that against the order of dismissal from service, the writ petition does not lie in view of the apex Court judgment and others, (2010) 4 SCC 554, and, therefore, the petition be relegated to the Central Administrative Tribunal.
Shri Rama Shanker Singh, learned counsel appearing for the petitioner made an attempt to justify the action of filing the writ petition straightway on the ground that the Tribunal has already dismissed the original application filed against the show cause notice and the irregularities, which were committed during the pendency of the departmental proceedings, which made the order of dismissal of service bad, therefore, going to the Tribunal again and raising the same pleas would not be of any benefit to the petitioner. Considered the aforesaid arguments and perused the record. The petitioner appears to have gone to the Tribunal at an interlocutory stage when the disciplinary proceedings were initiated, raising grievance against the show cause notice and the procedure which was being followed in the departmental proceedings, wherein the point of jurisdiction to proceed in the matter was also raised. The Tribunal did not accept the challenge made by the petitioner and made an observation as follows:
We have not found anything arbitrary or perverse in the steps being by the Appellate authority in accordance with CCS (CCA) Rules 1965 and relevant instructions issued in this regard. Therefore, we do not find any scope to interfere at present with the departmental proceedings which may continue in accordance with law. The Tribunal also issued certain directions for concluding the inquiry, but as per the petitioners submission even these directions have not been complied with and in violation thereof dismissal order has been passed. In view of the dictum of the Apex Court in the case of Rajeev Kumar and another (Supra), this Court would not entertain the writ petition against the dismissal order from service, without requiring the petitioner to approach the Tribunal.
The plea of the petitioners counsel that the Tribunal has already expressed its opinion in regard to the points raised in the original application filed earlier including the plea of jurisdiction of the authority to proceed in the matter, requires no consideration by us at this stage for the reason that the order passed at the interlocutory stage during the departmental inqiry can not be taken to be binding when an order has been passed and punishment has been inflicted upon the petitioner. If the dismissal order suffers from any manifest error and the same has been passed by the authority, who lack jurisdiction in the matter, such a plea can be raised even after passing the dismissal order.
In the instant case what we find is that the order of Tribunal was passed on 21.10.2010, and the dismissal order has been passed on 28.10.2010, leaving little time for the petitioner to challenge the order passed by the Tribunal in the superior forum though the petitioner feels aggrieved by the findings recorded in the aforesaid order.
Since this writ petition straightway can not be entertained for the reasons stated above, we give liberty to the petitioner to approach the Central Administrative Tribunal and further direct that the findings/observations made in the order passed by the Tribunal, at the interlocutory stage of the disciplinary proceedings shall not be treated as final and binding. It will be at the discretion of the Tribunal to consider all the issues and all the pleas so raised in accordance with law.
This observation we have made without entering into the validity of the findings recorded by the Tribunal for the reason that in the absence of any such discretion being given to the Tribunal, the purpose of challenging the dismissal order before the Central Administrative Tribunal will stand frustrated and it may lead to gross injustice to the parties.
This peculiar situation where the Tribunal has passed an order on 21.10.2010 and as per the allegation of the petitioner, without following even the directions issued by the Tribunal, the dismissal order had been passed soon thereafter within 7 days, the order passed by the Tribunal, obviously could not be challenged earlier in superior forum.
Sri Rama Shanker Singh, learned counsel for the petitioner submitted that a direction be issued to the Tribunal to decide the interim relief application at the earliest, to which Sri Rajesh Singh Chauhan, has no objection, we, therefore, provide that in case an application for interim relief is moved along with the original application, we expect that the Tribunal will consider the same without ;any undue delay, say within a maximum period of one month form the date a certified copy of this order is produced. Since, the petitioner is also to retire within a span of 8 months, the original application may also be disposed of expeditiously. Subject to the directions aforesaid, the writ petition is dismissed.
20. In furtherance of the judgment of the order of Honble High Court dated 12.11.2010, the applicant filed the present O.A. on 8.12.2010. It was taken up on14.12.2010. After hearing the arguments for about = an hour, it was pointed out on behalf of the respondents that the first page /cover page which mentions about the provisions of appeal against the impugned order has not been filed. Therefore, the applicant, was directed to file it. Thereafter, an amendment application was moved on behalf of the applicant which was allowed on 9.2.2011and the O.A. was listed for admission/ hearing on 22.3.2011. On that date, lawyers were on strike. The case was then taken up on 18.5.2011. On that date, the applicant sought time to file some papers. Then on 31.5.2011, the arguments were heard for about 1-1/2 hours . On that date, it was observed that in view of the aforesaid first page/cover page (Annexure SA-1 to Supplementary Affidavit dated 20.12.2010), there is a provision of appeal to the Honble President against the impugned order dated 28.10.2010 under Rule 23 (ii) of CCS (CCA) Rules within 45 days of communication of the order. But in this Supplementary affidavit dated 20.12.2010, there was no explanation at all as to why this alternative remedy was not availed. Then on the request of the learned counsel for the applicant, an opportunity was given to file a specific affidavit in this regard, which was filed in due course and when the case was taken up on 6.7.2011, the arguments were again heard but it was noticed that some of the papers filed by the applicant were not readable. The applicant then sought time to file readable papers, and filed the same. Ultimately, on11.7.2011, the learned counsel for applicant expressed his desire to argue the case finally (instead of arguing on interim relief) and accordingly, the final arguments were heard and the material on record was perused.
21. On the date of initiation of disciplinary proceedings when the charge sheet was issued i.e. 01.04.2003 the charged officer was a superintendent i.e. Gazetted Group B officer and the disciplinary authority was Commissioner of Central Excise who was also the appointing authority for the charged officer.
The disciplinary authority(the commissioner concerned) was directly subordinate to the Appellate Authority i.e chief Commissioner and was working under the control and supervision of the Appellate Authority being his immediate subordinate authority.
In terms of CBEC order dated 13th July 2010, in case of Group B officer (Gazzeted) or (non-Gazetted), the disciplinary authority is the commissioner and the Appellate Authority is Chief Commissioner. The 3rd stage authority is revisionary authority that is the Honble President of India. These facts have not been disputed by the applicant anywhere in the pleadings. Further, in para 22 of the counter affidavit also, the respondents have pleaded that vide letter dated 31.3.2003 read with Schedule Part- II under CCS(CCA) Rules 1965, it was clarified that the appointing/ disciplinary authority in respect of Group B level officers will be commissioner. A photo copy of the letter dated 31.3.2003 has also been enclosed as Annexure CR-01 to the counter affidavit. They have further clarified that the Chief Commissioner is very well competent to revise the order passed by disciplinary authority under the said rules.
22. According to the respondents the order dated 28.10.2010 was passed in exercise of the power vested in the appellate authority under Rule 29(v) of CCS (CCA) Rules which is reproduced below:-
Rule 29(V) The Appellate Authority, within six months of the date of the order proposed to be (revised);..
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and (revise) any order made under these rules or under the rules repealed by Rule 34 form which an appeal is allowed, but from which no appeal is allowed, after consultation with Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided further that no power of (revision) shall be exercised by the Comptroller and Auditor General, (member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications) or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
GOVERNMENT OF INDIAS INSTRUCTIONS (1) Self contained, speaking and reasoned order to be passed and to issue over the signature of the prescribed Revision Authority.
23. The submission of the learned counsel for the applicant is that at the bottom of the impugned order word Reviewing Authority is mentioned in the bracket just below the designation of Chief Commissioner. But the power of review is only with the President of India and the Chief Commissioner can not exercise this power. In this regard, it was submitted by the learned counsel for the respondents that there was a typographical mistake where instead of typing as Appellate Authority the word Reviewing Authority was typed in the last page of the impugned order dated 28.10.2010. It ought to have been Appellate authority. But nevertheless, he points out that in the caption of this order on first page, it is clearly mentioned that this is an order-in-revision. An order-in-revision can be passed only under Rule 29(v) by the Appellate Authority as would be evident from the perusal of the provisos of Rule 29(v) which have been extracted earlier. We have also carefully gone through the aforesaid provisions and we find substance in the above submission made on behalf of the respondents. From a careful perusal of this orderin-revision it also becomes clear that the Appellate Authority had exercised his powers under Rule 29 (v) of CCS (CCA) Rules 1965 and not under Rule 29-A of CCS (CCA) Rules. The powers of review under rule 29-A is vested in the President only. Finally, therefore the submission made on behalf of the applicant as mentioned above is devoid of any force.
24. This Tribunal while dismissing earlier O.A. 491/2010 on 21st October, 2010 had passed the following order:
However, before departing, we would like to give some direction to ensure that proceedings against the applicant are not delayed and the applicant does not have any objection to the conduct of the proceedings on procedural grounds. The applicant is directed to cooperate with the department by way of submitting his written statement in defence, if any, within four weeks.
25. It is true that the applicant was given time by this Tribunal to file his written statement in defence, if any, within 4 weeks. This was done to ensure that the applicant may not have any objection on procedural grounds. The applicant was also directed to cooperate with the department. However, the material fact was concealed before this Tribunal in earlier O.A. No. 419/2010 decided on 21.10.2010 that the applicant had already submitted his reply / statement of defence running into 10 pages before the Appellate Authority on 18.9.2010 in response to the show cause notice dated 2.8.2010. This fact was also not disclosed before the Honble High Court when he filed Writ Petition No. 1694/2010 whereby the Honble High Court directed vide order dated 12.11.2010 that this Tribunal shall consider this case on all issues and all pleadings so raised in accordance with law.
26. The above material fact has again been suppressed by the applicant even in the present OA 516/2010. It was confirmed by both sides when the case was listed for this clarification along with O.A. No. 419/2010 on 03.08.2011. Suppression of the material fact regarding submission of his written statement of defence on 18.09.2010 in response to a show cause notice dated 02.08.2010 in O.A. 419/2010 and O.A. 516/2010 is ground sufficient to render this present O.A 516/2010 liable for dismissal. As the applicant has not come with clean hands before this Tribunal and has suppressed the factum of his defence which he had already submitted way back on 18th September, 2010, he cannot be permitted to harp on the point that the dismissal order has been passed in a hurried manner within a week of the order of the Tribunal dated 21.10.2010 in which , statement of defence if any was directed to be filed within 4 weeks. In fact this direction was given under the impression that no defence has been submitted by the applicant because as mentioned above, it was not disclosed in the pleadings. At the same time, the words within 4 weeks cannot be construed to mean that the dismissal order could have been passed only after the lapse of 4 weeks. The intention of the Tribunal was not to allow any time limit over and above, whatever has been provided under the CCS (CCA) Rules. It is also worth mentioning that by the same order, the applicant was also directed to cooperate. But as would be evident from the subsequent discussion, after the judgment of this Tribunal on 21.10.2010 when the notice was served upon him, on the same night, from the very next morning, he pretended to have fallen ill and instead of the applicant, his wife came forward to tell about his illness. But in spite of his alleged serious illness, he got prepared a Writ Petition to be filed before the Honble High court immediately thereafter. He also did not avail the personal hearing on the date so fixed before the Appellate Authority.
27. In the impugned order dated 28.10.2010 also it has been elaborated by the Appellate Authority that after the judgment of the CAT, Lucknow Bench on 21.10.2010 in OA. No. 419/2010, the notice was served upon the charged officer on the same night and he was also informed that ample opportunity has been given to him for filing written statement of defence and that his written statement of defense dated 18.9.2010 had already been taken on record which would be duly considered along with his gamut of all submissions made before the Honble High Court as well as before the Central Administrative Tribunal. It was also noted in this notice that Sri Saxena had not appeared on any of the date of the proceedings fixed from time to time. Therefore, last and final opportunity was given to him for personal hearing in the forenoon of 26.10.2010. The wife of Sri R.K.Saxena vide her letter dated 22.10.2010 had intimated that her husband Sri Saxena had got Mayo Cordial Infraction in the early morning of 22nd Morning , 2010 and so on as already mentioned before. The request was made to adjourn the personal hearing on26.10.2010 before the Chief Commissioner and to fix some other date after due recovery of Sri Saxena. The Chief Commissioner ( Appellate Authority) has further mentioned that such development was perhaps apprehended by the Honble CAT and for that reason appropriate direction was issued to the applicant to cooperate but Sri Saxena deliberately chosen to delay the proceeding and defeat the very purpose of proceedings as he was well aware that he will be retiring on 31st July, 2010. However, without commenting on the medical certificate and about contents of the certificate and also about on his falling ill, the appellate authority found it intriguing. He further mentions in his order that after the pronouncement of the judgment by CAT, Lucknow Bench on 21st October, 2010, the applicant had immediately fallen ill and got himself admitted in various hospitals after receipt of the notice of personal hearing. The Doctor certificate under heading To whomsoever it may concern was issued only on 25th October, 2011 as the hearing was fixed before the Chief Commissioner (Appellate Authority) on 26th October at 11.00 a.m. On the basis of this conduct, the Chief Commissioner (Appellate Authority) observed that to him, chances of recovery of Sri Saxena before his retirement appeared very weak. Nevertheless, as already discussed before , he dealt with all the points of defence of charged officer in his impugned order of dismissal.
28. It is also worth mentioning that instead of approaching the appropriate Appellate/Revisionary Authority or the proper forum including Central Administrative Tribunal, the applicant rushes to the Honble High Court every time. The Honble High Court has always been relegating the case back to the Central Administrative Tribunal/Appellate Authority for availing alternative effective remedy as per rules. The matter has taken almost a decade after the issuance of the charge sheet on 01.04.2003.
29. It is also worthwhile to mention that probably with a view to save him from the objection of alternative remedy, the applicant initially did not file the first page of impugned order dated 28.10.2010 which clearly mentions about alternative effective statutory remedy of appeal before the President of India. He filed this paper only when it was pointed out by respondents in their one affidavit. This first page is reproduced below:
ORDER-IN-REVISION DT. 28.10.2010 Passed by Shri B. R. Tripathi, IRS, Chief Commissioner, Customs, Central Excise & Service Tax, Lucknow Zone, Lucknow PREAMBLE An appeal against this order will lie to The President under the provisions of Rule 23 (ii) of CCS (CCA) Rules within 45 days of the communication of this order.
30. Perusal of the above preamble clearly shows that an appeal against the order-in-revision dated 28.10.2010 will lie to the President under Provisions of Rule 23 (ii) of CCS (CCA) Rules within 45 days of communication of his order. There appears to be no ambiguity in the matter in view of the 3 tier system prevailing in the department in view of CBEC order dated 13.07.2010 which has already been discussed.
31. During the arguments, learned counsel for the applicant conceded that applicant had not filed any appeal to the President under relevant provisions of CCS (CCA) Rules 1965 mentioned above. No satisfactory reason could be advance on behalf of the applicant as to why the appeal was not filed before the President within the specified period. Since, the applicant has failed to avail the effective alternative and statutory remedy provided under CCS (CCA) Rules, the present O.A. No. 516/2010 is hit by Section 20 (1) of Administrative Tribunal Act,1985 which is reproduced below:
20(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
32. We have carefully gone through this order of dismissal. It is a well reasoned and speaking order running into about 15 pages. This dismissal order has been passed after considering all the issues as also all the pleadings filed by the charged official from time to time and brought on record as annexed to his earlier two writ petitions of August and September, 2010 filed before the Honble High Court and also in O.A. No. 419/2010 filed before the CAT, Lucknow Bench. Not only this, the Chief Commissioner (Appellate Authority) also considered the detailed written statement of the charged officer dated 18.9.2010 addressed to him , in response to the notice dated 2.8.2010. Thereafter, he also dealt with the point of observance of opportunity of hearing. Then, he made a long discussion on the findings. For convenience, this entire impugned order dated 28.10.2010 has been extracted earlier in this judgment.
33. Finally, on the basis of above discussion, we reach to the conclusion that there is no illegality or infirmity attached to the impugned order of dismissal dated 28.10.2010 (contained as Annexure -1).
34. Now , we come to the second impugned order dated 31.8.2010 which pertains to jurisdiction of the appellate authority (Chief Commissioner). In fact, this impugned order was specifically challenged in the earlier O.A. No.419/2010. From the material produced in the present OA. No. 516/2010, we find that the applicant has not added anything new which was not there in his earlier aforesaid OA. No. 419/2010 except that he has added the order of dismissal in it. In these circumstances, we have no other option but to reiterate our earlier findings given in respect of this order at the time of dismissal of O.A. No. 419/2010 vide our order dated 21.10.2010.
35. Under the facts and circumstances and legal position mentioned above, the O.A., does not have any merit and is liable to be dismissed for the reasons recorded in the foregoing paras. There is no legal infirmity in orders passed by appellate authority.
36. The O.A. is accordingly dismissed. Parties will bear their own cost.
(S. P. SINGH) (JUSTICE ALOK KUMAR SINGH) MEMBER (J) MEMBER (J) vidya