Central Administrative Tribunal - Ahmedabad
J.J. Tekwani vs Union Of India (Uoi) And Ors. on 18 July, 2003
Equivalent citations: 2004(2)SLJ251(CAT)
JUDGMENT A.S. Sanghavi, Member (J)
1. The applicant an ex-employee of the respondent No. 3 has approached this Tribunal with a prayed to quash and set aside the order dated 16.8.2001 imposing the penalty of 20% cut in his monthly pension for a period of 5 years. The penalty is imposed by the present acting as a Disciplinary Authority of the applicant. The applicant was served with a charge sheet by the Collector, C.C.E., Ahmedabad on dated 26th January, 1988. Prior to the service of the charge sheet he was suspended w.e.f. 14.1.87 but the suspension had come to be revoked on dated 2.5.1988 and an inquiry was conducted in the charges leveled against the applicant and vide his report dated 16.8.89 Inquiry Officer held the charges to be proved. The Disciplinary Authority after supplying the copy of the report of the Inquiry Officer to the applicant and after obtaining his representation thereon imposed the penalty of reduction of pay on the applicant from Rs. 2675 to Rs. 2450 for a period of two years without cumulative effect vide order dated 27.12.89. The applicant preferred an appeal and the Appellate Authority had sought the advice of the UPSC. The UPSC observed that the reasons for disagreement with I.Os. finding were not communicated to the delinquent and the I.O. had not examined the delinquent under Rule 14 (18) of the CCS (CCA) Rules, 1965 and as such there was a violation of the CCS (CCA) Rules. The UPSC therefore advised the Appellate Authority to remand the matter back to the Disciplinary Authority for holding de novo inquiry from the stage of the cross examination of the delinquent under Rule 14 (18) of CCS (CCA) Rules. The Appellate Authority accordingly vide order dated 17.7.97 ordered a de novo inquiry against the applicant from the stage of examination of the applicant. The applicant had in the meantime, retired from the service on attaining the age of superannuation with effect from 28.2.94. He had retired as a Superintendent and his pension and other retirement benefits were also paid to him. His pension was fixed finally and he was also paid his other retirement dues. According to the applicant directing the Inquiry Officer to hold the de novo inquiry in the charges leveled against him by the Appellate Authority after he had retired from the service was clearly an illegal direction not supported by any rules. He had never asked for a de novo inquiry nor had he raised the question of the inquiry being vitiated on account of the same being conducted without his examination. It was therefore not proper on the part of the Appellate Authority to remand the matter back after 7 years of the passing of the order and after more than 13 years of the alleged incident and 3 years of his retirement. He has contended that he would have definitely withdrawn his appeal, if during personal hearing, which was not given to him, any indication of remanding the matter had been given to him. The holding of the de novo inquiry was therefore completely illegal and all the subsequent proceedings of the receipt of the I.Os. report and the proceedings of the penalty of 20% cut in his monthly pension were bad in law. He has therefore approached this Tribunal and prayed for quashing and setting aside the impugned order Annexure A/12.
2. The respondents in their reply have contended that the impugned order has been passed after due consideration of all the facts on record and due observance of principal of natural justice. According to them, the penalty awarded to the applicant by the impugned order is absolutely justified and exemplary in nature and could serve as a deterrent to others in future. They have contended that it was gross negligence attitude of the applicant which resulted in loss of revenue. They have defended the action of the Appellate Authority in directing the de novo inquiry on the ground that the Appellate Authority had noted some infirmities in the procedure and non-compliance of the statutory requirement and as such was asked to remand the matter back to the Disciplinary Authority for de novo inquiry. According to them, the applicant having participated in the aforesaid de novo inquiry is not entitled to challenge the illegality of the otherwise of the decision of the Appellate Authority to remand the matter back to the Disciplinary Authority for holding the de novo inquiry. They have also denied that the punishment imposed on the applicant is harsh and that the order of punishment was illegal.
3. We have heard the learned Counsel of both the parties at length and with their consent we are disposing of this O.A. at the admission stage.
4. The order of the Disciplinary Authority dated 16.10.2001 imposing the punishment of withholding of 20% pension of the applicant is assailed by Mr. Kureshi, learned Counsel for the applicant on mainly 3 grounds. According to him the applicant had never demanded de novo inquiry in the charges leveled against him nor had he assailed the finding of the earlier Disciplinary Authority on the ground of non-observations of the principles of natural justice by the Inquiry Officer and as such the Appellate Authority was not justified in direction the de novo inquiry in the charges leveled against the applicant. The order of the de novo inquiry was passed by the Appellate Authority on dated 17.7.97 though the applicant had retired on attaining the age of superannuation on dated 29.2.94 and as such the Appellate Authority was incompetent to pass such an order. His second contention was that vide order dated 27.12.89 Disciplinary Authority had imposed the penalty of reduction of pay of the applicant from Rs. 2675 to Rs. 2450 for a period of two years without cumulative effect and since this penalty was not stayed by the Appellate Authority, the applicant had already undergone that penalty. Once he had already undergone that penalty, he could not have been for the same charges awarded another penalty of withholding of 20% pension for a period of 5 years. The second penalty is in the nature of double jeopardy and clearly offends the provisions of the Constitution. His third submission was that the applicant was never charged with non-maintenance of integrity or indulging into corruption or that there was any revenue loss and there was absolutely no evidence led before the Inquiry Officer also in this regard, yet on the erroneous advice given by the UPSC the applicant has been visited with a penalty of 20% cut in the monthly pension for a period of 5 years which is not only excessive, harsh and unreasonable but is also illegal.
5. We will be taking up the contentions advanced by Mr. Kureshi one by one and considering his first contention we find that there is lot of justification in what he has submitted. The applicant was working as an Inspector in Range 1, Division-1, Ahmedabad and allegation against him was that during the period from 20th June, 81 to July, 84 he had failed to assess RT-12s of the SS of M/s. Reliance Textiles Company Limited properly scrutinizing the gate passes with reference to the approved classification list/ price list entry in PLA RG-23 Pt. 1 and T.R. 6 challans and also checking RG-23 Pt. I & II Register maintained under Rule 56-A of Central Excise Rules, 1944. This had resulted into a fictitious credit amount of Rs. 1,17,35,918.11 going unnoticed by the applicant, resulting into the revenue loss of Rs. 1,17,35,918.11 . He was placed under suspension w.e.f. 14.1.87 but the same was revoked on 2.5.88. He was served with a charge sheet on dated 20th January, 88 and the inquiry was conducted in the charges leveled against him. It is also admitted position that the alleged revenue loss of Rs. 1,17,35,918.11 was intact not sustained by the Government as the party concerned i.e., the Reliance Textile had paid up the amount on dated 3.6.87 i.e., even before the issue of the show cause notice by the department on the applicant. The Reliance Textile had even paid the penalty of 1 Crore imposed on it vide order dated 28.9.89. Hence the question of the Government sustaining revenue loss did not arise on the date on which the charge sheet was given to the applicant. No allegations of the applicant indulging into any malpractice or his indulging into any act of commission or omission in connivance with the party concerned were also made in the charge sheet and as such it is quite obvious that the charges leveled against the applicant were only with regard to his negligence in assessing and scrutinizing debit/credit entries etc. It is also pertaining to note that the Inquiry Officer in his first report dated 16.8.89 has observed that this fictitious credit could not be found out by the officers of the revenue department and also by the Anti Evasion Directorate Officers and could not be located by the officers of the Preventive Groups of the Central Excise and no one had been able to bring these fictitious credit of such a magnitude to light till 14.5.87. According to this inquiry report this could be found out only on the receipt of the specific information received in this regard on 14.5.87 after about 3 years and 10 months from the date of the availing of this fictitious credit by the unit. He has also observed that this fraud was carried out with such cleverness by the assessee party that it was very difficult for any body to detect unless having previous knowledge of the same. He therefore recommended that the charged officer deserves clemency on account of the mitigating factors like the volume of documents contained in the return for July 1983 and the fact that the fictitious credit availed of by assessee was not a normal thing but done with great skill making it impossible to detect even by specialised Agencies and that the fraud came to light only because of the specific information. It is also stated that the department had charged the Assessee with wilful misstatement, suppression of facts etc., and had launched the prosecution against it resulting into the imposition of a penalty of 1 crore Rs. The Disciplinary Authority however did not agree with the Inquiry Officer that such a fictitious entry could not have been detected easily and observed that had the applicant exercised the prescribed checks properly, it would have been possible for him to detect the fictitious credit entry. He therefore vide his order dated 27.12.89 imposed the penalty of reduction in the pay of the applicant to Rs. 2450 in the time scale of the pay of Rs. 2000-3500 from 1.1.90 for a period of two years. He also further directed that the applicant would not be entitled to earn increments of pay during the period of reduction and that on the expiry of the period the reduction would not have the effect of postponement of his future increments of pay.
6. There is no dispute that the Disciplinary Authority i.e., Collector of the Central Excise and Customs was competent to pass this order of penalty and that the appeal against this order as per the rules lies to the President of India, New Delhi. The applicant had preferred the appeal against this order on dated 6.3.90 and admittedly the appeal remained pending and undecided till 17.7.97. It is undisputed position that during the pendency of this appeal before the President of India the applicant on attaining the age of superannuation retired from the service on dated 29.2.94. It is also not in dispute that prior to his retirement he had undergone the penalty imposed on him and after his retirement from the service his pension was finally fixed and he had been paid all the retirement benefits. It appears from the departmental file that the appeal of the applicant was referred to the UPSC for advise. The Appellate Authority has pursuant to the receipt of the advise from the UPSC passed the order dated 17.7.97 directing a de novo inquiry by the Disciplinary Authority. The relevant extract of the order dated 17.7.97 is reproduced as under:
"It is observed from the case records and other materials relevant to the case, that the Inquiry Officer has not generally examined the C.O. under Rule 14(18) of the CCS (CCA) Rules, 1965 which is mandatory. There has been a violation of the above rule and denial of natural justice to C.O. to the above extent. Further, it is also observed that the Disciplinary Authority has not conveyed his reasons of disagreement with the findings of the I.O. to the C.O. for making his submission. These lapses have vitiated the proceedings and same have to be corrected before the finalisation of the disciplinary proceedings. In view of the above, the case is remanded back to the Disciplinary Authority for holding de novo inquiry from the stage of examination of C.O. by I.O. under Rule 14(18) of CCS (CCA) Rules, 1965 and thereafter, communicate his reasons of disagreement, if any, with the findings of the I.O. to the C.O. for making his submissions thereon."
7. According to Mr. Kureshi, learned Counsel for the applicant, after the retirement of the applicant from the service, under the rules the President becomes the Disciplinary Authority and since this order dated 17.7.97 was passed by the President acting as Appellate Authority directing the Disciplinary Authority to hold a de novo inquiry in the charge leveled against the applicant, all further actions after de novo inquiry ought to have been taken by the President as Disciplinary Authority and not by the Collector of the Customs and Central Excise. According to him, after the de novo inquiry was ordered by the Appellate Authority the Commissioner, Central Customs and Excise, Ahmedabad had vide his order dated 21.1.98 appointed Mr. K.K. Goyal Additional Commissioner as the Inquiry Authority who inquired into the charges against the applicant from the stage of examination of charged officer. He has not only appointed that officer as an Inquiry Officer but had also withdrawn the earlier order issued on dated 26.8.97 appointing Mr. K.K. Goyal Deputy Commissioner as I.O. Mr. Kureshi has submitted that the Commissioner. Central Excise and Customs had no authority to appoint the Inquiry Officer or withdraw the appointments of the earlier Inquiry Officer as after the retirement of the applicant from service the President was the Disciplinary Authority of the applicant.
8. We have carefully considered the submissions of Mr. Kureshi. However in the light of the provisions of Sub-rule 2(a) of Rule 9 of the CCS (Pension) Rules it is not possible to agree with the submissions of Mr. Kureshi. Sub-rule 2(a) lays down as under:
"The departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
Provided that whether the departmental proceedings are instituted by an authority subordinate to the Preside, that authority shall submit a report recording its findings of the President."
9. From a plain reading of this Sub-rule 2 (a) it becomes clear that the sub-rule contemplates a situation where a departmental proceedings were already instituted against the Government servant while he was in service but were not finalised before his retirement. It, provides for the procedure to be adopted after the final retirement of the Government servant and lays down that the departmental proceedings shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. It is an undisputed position that an appeal is a continuation of the proceedings and therefore the retirement of the applicant during the pendency of his appeal can be construed as the departmental proceedings being continued. They were therefore required to be concluded by the authority which commenced the same, hence when the President acting as Appellate Authority of the applicant directed the de novo inquiry, the original Disciplinary Authority i.e., Collector and now Commissioner of the Central Excise and Customs was required to continue that proceedings. The embargo that the rule places is his right to pass any final order on the conclusion of the departmental proceedings. The proviso makes it clear that if the proceedings are instituted by an authority subordinate to the President, that authority shall submit a report regarding its finding to the President. Hence the original Disciplinary Authority was required to continue the proceedings and on conclusion of the proceedings was required to submit the report recording his findings to the President. It therefore cannot be said that by passing order dated 21.1.98, after the de novo inquiry was ordered by the Appellate Authority, the Commissioner Central Excise and Customs had acted arbitrarily and that he was not competent to appoint the Inquiry Officer of replace the Inquiry Officer with another Inquiry Officer. We have therefore no hesitation in concluding that the order dated 21.1.98 issued by the Commissioner, Central Excise and Customs, Ahmedabad was not illegal or arbitrary and the subsequent inquiry proceedings were not vitiated on account of the order passed by him. We hold that he was competent to pass such an order.
10. However, the same is not the case so far the subsequent proceedings are concerned. We find from the order of the President dated 17.7.97 that though he had ordered the de novo inquiry in the charges leveled against the applicant, he had not passed any orders regarding the penalty imposed by the Disciplinary Authority vide order dated 27.12.89. It is to be noted that this order dated 17.7.97 in the name of the President has come to be passed after about 7 years of the order of the Disciplinary Authority. Apart from the question of the justification in passing of such order at such a belated stage and directing a de novo inquiry in the charges when the employee had already retired, we may point out that the Disciplinary Authority i.e., Collector of the Central Excise and Customs, Ahmedabad had imposed the penalty of reduction in the pay of the applicant to be effective from 1.1.90 for a period of two years and had also directed that he would not be entitled to earn increments of pay during the period of reduction. It is also quite obvious that effect of this order was given prior to the Appellate Authority directing a de novo inquiry in the charges against the applicant. The order of the Appellate Authority dated 17.7.97is completely silent about the penalty imposed by the Disciplinary Authority and already undergone by the applicant. The order does not quash or set aside that penalty. Since the order does not set aside the penalty imposed on the applicant by the Disciplinary Authority, it was not open to the Appellate Authority to direct the de novo inquiry in the charges leveled against the applicant. The order reproduced earlier of the Appellate Authority merely speaks about the remand of the inquiry to the Disciplinary Authority and directs the authority to hold the de novo inquiry from the stage of examination of the C.O. by I.O. under Rule 14(18) of CCS (CCA) Rules. If the Appellate Authority was of a view that the lapses on the part of the Disciplinary Authority as well as Inquiry Officer in observing the mandatory procedure had vitiated the proceedings then it was necessary on his part, first to quash and set aside the proceedings and remand the inquiry back to the Disciplinary Authority. Having not done so, any further steps taken by the Disciplinary Authority or Inquiry Authority pursuant to these directions stands vitiated on the applicant of the maxim memo debit bis vexari i.e., no man should be twice vexed. The position that emerges from the order of the Appellate Authority is that the penalty which was imposed by the Disciplinary Authority earlier on the applicant continued and the applicant had already undergone that penalty and inspite of his having already undergone the penalty on the charges leveled against him, the Appellate Authority has directed the initiation of the fresh inquiry in the same charges against him and not only a de novo inquiry was directed but after holding the inquiry and inviting the report of the Disciplinary Authority the applicant has been punished with 50% cut in his pension. Apparently, this is a case of double jeopardy and cannot be allowed to be sustained. The earlier penalty imposed on the applicant had never come to be quashed and set aside by the Competent Authority and as such applicant could not have been imposed a second punishment for the same charges. The significant aspect of the matter is that his pension is also finally fixed and he has been paid all the retirement benefits. It itself suggests that the department had considered the applicant to have undergone the earlier penalty and released the pension to him. It was therefore not open to the authority concerned to withhold his pension again by way of a second penalty. We have therefore no hesitation, in concluding that the order dated 16.8.2001 passed in the name of the President by the Under Secretary of the Government of India imposing the penalty of 20% cut in the monthly pension for a period of 5 years on the applicant is illegal and arbitrary and deserves to be quashed and set aside.
11. Some arguments were advanced regarding the reasonableness and correctness of the order passed by the President in the year 2001 in the inquiry instituted in the year 1988 and about the penalty being not commensurate with the gravity of the charges leveled against the applicant but in view of our holding that the order itself is illegal and unjust we are not entering into the merit of this submissions.
12. For the foregoing reasons and in the facts and circumstances! of the case, we allow this O.A. and quash and set aside the order dated 16.8.2001 passed in the name of the President by Under Secretary to the Government of India imposing penalty of 20% cut in the monthly pension of the applicant for a period of 5 years. The O.A. stands disposed of. No order as to costs.