Central Administrative Tribunal - Bangalore
C.V. Mohan Kumar vs The Commissioner Of Central Excise And ... on 19 September, 2007
Equivalent citations: 2008(2)SLJ104(CAT)
ORDER K.N.K. Karthiayani, Member (A)
1. The applicant who is working as Superintendent of Central Excise in Bangalore HI Commissionerate is aggrieved by the punishment of reduction in pay by two stages from Rs. 9900 to Rs. 9500 in the scale of Rs. 6500-200-10,500 for a period of two years with effect from 1.10.2004 with further direction that he will not earn increments of pay during the period of reduction and the reduction will not have the effect of postponing his future increments of pay.
2. The case of the applicant is that departmental proceedings were initiated against him under Rule 14 of CCS (CCA) Rules, 1965 vide Charge Memorandum dated the 31.7.2000 (Annexure-A2). The charge framed against him was that when he was working as Superintendent of Central Excise, Bellary, Range, Bellary, on 8.9.99, demanded and made Shri K. Bhaskar Naidu, Inspector of Central Excise Bellary Range, Bellary, to accept an amount of Rs. 5,000/- on behalf and at the instance of him as an illegal gratification other than legal remuneration from Shri K. Naveen Kumar, Proprietor of M/s. Eagle Courier No. 29(c), Priya Complex, Ananthapur Road, Bellary, as a motive or reward for showing official favour in the matter of providing a Registration Certificate to Sri Naveen Kumar for a new Courier Service by name M/s. Bangalore Express Courier, Bellary which Sri Naveen Kumar was intending to start at Bellary and for setting his pending case pertaining to Ms/. Eagle Courier for non-payment of Service Tax dues and non-filing of Returns to Central Excise, Bellary. It was alleged that by the above act the applicant failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of Government Servant and thereby violated Rule 3( 1 )(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. As the charges were denied by the applicant a joint enquiry was ordered against him and Shri K. Bhaskar Naidu, Inspector of Central Excise. The Enquiry Officer submitted his report on 8.8.2002 holding the charge against the applicant as proved. The applicant submitted a representation against the enquiry report. Taking into account the facts mentioned in the said representation, the Disciplinary Authority (respondent No. 2) passed the impugned order at Annexure-A12. The applicant submitted an appeal under Rule 24 read with Rule 26(2) of CCS (CCA) Rules to the President of India. The said appeal was rejected vide order dated 13th September, 2005 (Annexure-A 14). The applicant prays that the charge sheet dated July 2000, the enquiry report dated 8.8.2002, the punishment order dated 17.9.2004 and the appellate order dated 13.9.2005 be quashed and set aside.
3. The grounds raised by the applicant to support his prayer in the O.A. is that the charge sheet was issued based on a complaint made against the applicant and enquired by the CBI; the said complaint dated 7.9.1999 was made by one Naveen Kumar, Proprietor, Eagle Courier Bellary to the Superintendent of Police, CBI, Anti Corruption Branch , Bangalore, making allegations which are bald, vague and devoid of necessary facts of which CBI can take cognizance. A copy of the complaint is marked as Annexure-Al to the O.A. "On 8.9.1999, under the disguise of joint surprise check, a trap is said to have been laid without following any procedure as required under law for such a trap". The charge memorandum at Annexure-A2 is liable to be quashed as it is vague and not definite. It does not disclose and indicate as to how the applicant has violated Rule 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964 separately. Taking into account of the principles laid down by the Hon'ble Apex Court in State of U.P. v. Mohd. Sheriff AIR 1992 SC 9375, the charge memorandum is liable to be quashed.
4. A perusal of the charge memorandum indicates that the allegation made against the applicant is based on hearsay evidence without any documentary or circumstantial evidence. "The Hon'ble Apex Court in a catena of cases held that charge sheet issued must be definite, precise and specific and must contain full particulars in regard to period, time, place and person. Otherwise it would be considered as vague and the inquiry would be vitiated, - Surat Chandra v. State of West Bengal; -State of U.P. v. Mohammed Sheriff, -Sawai Singh v. State of Rajasthan". It is further submitted that the amount was not seized from the applicant nor the said money was produced in the disciplinary proceedings. It was also not adduced that the applicant had demanded and accepted the seized money. Thus the basis of the charge memorandum is vague and untenable. Common proceedings were ordered against the applicant and Shri Bhaskar Naidu. Initiating the common proceedings and imposing the punishment without examining the material witness and without taking cognizance of the contradictory deposition made by the witnesses is arbitrary, discriminatory and therefore liable to be quashed and set aside.
5. The applicant further submits that the Enquiry Officer has violated Rule 14(18) of CCS (CCA) Rules, 1965. The action of the Enquiry Officer is against the decision rendered in S.K. Jain v. Union of India and Ors. 2003(3) ATJ 155 (CAT, Principal Bench : New Delhi). Further, the action of the Enquiry Officer is against the law laid down by the Hon'ble Apex Court in Ministry of Finance and Anr. v. S.B. Ramesh 1998 SC (L&S) 865). The Enquiry Officer has applied different yardsticks in appreciating the evidence and deposition of the witnesses only to suit his convenience to submit a report as dictated to him. The Enquiry Officer presumed that the applicant has to prove his innocence of the alleged offence/charge and shifted the responsibility to the applicant. In the present case the department has not proved the charges against the applicant and hence the conclusion arrived at by the Enquiry Officer is untenable. The Enquiry Officer has acted beyond the scope and power vested with him as Enquiry Officer.
6. "In the enquiry proceedings the documents were marked as exhibits and then it was served though the documents was not referred in the charge sheet". The applicant has quoted the entire statement of the complainant during the enquiry on 11.1.2002 and further the statements made by some of the witnesses to prove that the statements are contradicting each other. The allegation made against the applicant is based on the alleged statement of Shri Bhaskar Naidu who is the Charged Officer II. Neither he was produced as a witness nor his statement has been produced in the enquiry held against the applicant. The Hon'ble Apex Court in Hardwari Lal v. State of U.P. and Ors. 2000(1) ATJ 244, has held that non-examination of a complainant violates the principles of natural justice. In the present case Shri Bhaskar Naidu had made the allegation that he had accepted the money on the direction of the applicant and thus Shri Bhaskar Naidu became a material witness in the case.
7. Even though the statements of the witnesses listed in Annexure-IV to the charge memorandum said to have been recorded by the CBI officials at the time of investigation were available with the Disciplinary Authority at the time of framing the charge, neither the said statements have been listed in the list of documents annexed to the charge memorandum at Annexure III forming part of it nor have they been made or treated as part of the charge memorandum. These statements were introduced by the Presenting Officer during the enquiry without serving copies of the same on the applicant and without affording him an opportunity to look into the said documents or to submit his written objections on the same. No order has been passed to consider or to keep the said statements as part of the charge memorandum. The action of the department appears to have been guided by the second stage advice of the CVC despite knowing the fact that the proceedings initiated against the applicant was not sustainable.
8. The applicant has put in more than 25 years of service and his services are without any blemish. On many occasions he has been awarded for his distinct achievement in the work.
9. The respondents have filed their reply. It is stated that the Enquiry Officer had come to the conclusion on the basis of the evidence available on record and based on the statements. The respondents have denied the various allegations made by the applicant in the O.A. regarding the conduct of the enquiry violating the principles of natural justice.
10. The applicant in his rejoinder has further alleged that the statement of Shri Bhaskar Naidu which was made behind the back of the applicant was relied on by the respondents. Shri Bhaskar Naidu was not a witness in the proceedings against the applicant. The learned Counsel for the applicant stressed the following points during the hearing: (i) complaint which resulted in the trap laid by the CBI officers was based on hearsay evidence, (ii) There is no evidence to show that the applicant demanded money or had asked Shri Bhaskar Naidu to collect the money, (iii) The Disciplinary Authority has relied only on the statement of Shri Bhaskar Naidu to arrive at the conclusion that the charges held against the applicant was proved. The said statement was not given to the applicant during the enquiry, (iv) The DA has stated that there is no direct evidence available on record and the charges are held to be proved based on circumstantial evidence, whereas there is no such circumstantial evidence at all.
11. We have perused the detailed order passed by the Disciplinary Authority, respondent No. 2. The Disciplinary Authority has discussed at length the evidence on record with reference to the Enquiry Officer's finding. In Para 21 of the impugned order the DA admits that there is a major infirmity in the case of the CBI - "an independent witness who could neither witness what transpired in the room of the Superintendent, Shri Mohan Kumar, nor did he position himself within earshot of the conversion that took place in the Superintendent's room". The Disciplinary Authority further goes to state in Para 24 of the impugned order that "notwithstanding the ambiguities and contradictory statement of the departmental witnesses, the fact remains that Shri Bhaskar Naidu had admitted that he accepted the money at the behest of his superior, the Superintendent". The conclusion arrived at by the Disciplinary Authority is that "it is difficult to dismiss Shri Naveen Kumar's complaint of harassment by the charged officer as a mere ruse to harass the said departmental officers so as to dissuade them from initiating departmental action against him". The Disciplinary Authority then agrees with the Enquiry Officer's finding that the Article of Charge against the applicant is established though the conclusion is based on record of the case and circumstantial evidence. The D.A. is silent about the applicant's submission in response to the enquiry report that Shri Bhaskar Naidu was never made a witness and his statement has not been given to the applicant as a document to prove the charge against him. The statement was recorded behind his back and the applicant was not given an opportunity to cross-examine Shri Bhaskar Naidu. There is no evidence at all to prove that the applicant has demanded money from the complainant. The allegation is that he had made Shri Bhaskar Naidu accept the amount of Rs. 5000 on his behalf. Thus Shri Bhaskar Naidu became a material witness in proving that the applicant had made the said Bhaskar Naidu accept the illegal gratification on behalf of the applicant. The respondents have not submitted anything in their reply to counter the submission made by the applicant that Shri Bhaskar Naidu was not made witness so that the applicant could cross-examine him and this fact vitiated the findings, arrived at by the Enquiry Officer and the Disciplinary Authority. It is seen that the said statement of Shri Bhaskar Naidu wherein he had stated that he had accepted the money on the direction of the applicant was not cited as a document and therefore a copy of the same was not supplied to the applicant along with the charge sheet. In fact, when the statement of Shri Bhaskar Naidu is used against the applicant the said Shri Bhaskar Naidu himself became a complainant against the applicant. The principle laid down by the Hon'ble Apex Court in Hardwari Lal will apply in this case. In the said case the Hon'ble Apex Court observed that the principles of natural justice were not followed in not examining the complainant during the enquiry. Further, the Hon'ble Apex Court in Kuldeep Singh v. Commissioner of Police , had held that Reasonable opportunity contemplated by Article 311(2) means hearing in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
Another document on which the Disciplinary Authority has relied on to hold that the charge is proved is a letter written by the said Shri Bhaskar Naidu requesting for revocation of his suspension order. What is concluded from the said document is only that the applicant's contention that he received ST-1 application form only on 8.9.99 from the complainant is factually incorrect, in as much as the applicant was aware even before 18.8.99 that the complainant had requested for new registration certificate and had accordingly instructed Shri Bhaskar Naidu to verify the records of M/s. Eagle Couriers. This conclusion however, does not in any way prove that the applicant had directed Shri Bhaskar Naidu to collect the illegal gratification on his behalf. The Disciplinary Authority has not cited any other evidence which has been taken into account to prove the charges against the applicant. Therefore, it appears to us that the decision of the D.A. was based on "no evidence". It is already well settled in law that "when the conclusion is based on no evidence whatever, such conclusion is perverse". Judicial review of administrative action is called for when the action is arbitrary. Hence the impugned order at Annexure-A12 is liable to be set aside.
12. Regarding the impugned order at Annexure-A14, it is seen that in the appeal though the applicant had taken all the grounds before the Disciplinary Authority which we have discussed at length (including the evidence of Shri Bhaskar Naidu), the Appellate Authority has not discussed them at all. The Appellate Authority has gone entirely by the advice given by the UPSC. The UPSC has relied on the judgement of the Hon'ble Supreme Court in the case of Tara Chand Vyas v. Chairman and Disciplinary Authority to hold that:
Departmental Authorities are not like Civil Courts and only documentary evidence (copies of which were supplied to the petitioners) can be the basis of the findings. The standard of proof in departmental proceedings is not as strict as in a criminal proceeding. As such, and in view of above, there are adequate circumstantial evidences to establish the charge against the CO beyond reasonable doubt.
The Appellate Authority has not independently examined the details of the so called circumstantial evidence to establish the charge and see whether the findings of the Disciplinary Authority were warranted by the evidence on record [Rule 27(2)(b) of CCS (CCA) Rules]. The evidence of one Shri Suresh Babu is discussed in the advice given by the UPSC. The said Suresh Babu had not witnessed what transpired in the room of the applicant; he had not overheard any conversation either between the applicant and Shri Bhaskar Naidu or between the applicant and the complainant. The fact remains that there was no witness at all for the alleged charge of demand of illegal gratification or for the alleged direction given to Bhaskar Naidu to accept such illegal gratification. This fact has escaped the notice of the Appellate Authority while relying fully on the advice given by the UPSC. In Nagaraj Shivrao Karjagi v. Syndicate Bank HO Manipal and Anr. , the Apex Court has held that:
The authority have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the CVC or Central Government. No third party like the CVC or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their power and what punishment they should impose on the delinquent officer.
Thus relying on the advice of UPSC without independently examining the case on merits is bad in law. The appellate order having been issued entirely based on the advice of the UPSC without discussing any evidence on record and the detailed submission made by the applicant is liable to be quashed.
13. Accordingly, we quash and set aside the impugned orders at Annexure- A12 and A14. The O.A is disposed of accordingly. In the circumstances of the case there will be no order as to costs.