Central Administrative Tribunal - Delhi
Rajeev Kapoor vs The Union Of India Through on 28 October, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 3730/2013 Reserved On:13.10.2014 Pronounced on:28.10.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Rajeev Kapoor S/o Sri P.L. Kapoor Inspector, Customs & Central Excise, Settlement Commission, Principal Bench, 3rd Floor, Hotel Samrat, Kautilya Marg, Chanakyapuri, New Delhi-110021. .Applicant By Advocate: Shri A.K. Behera. Versus 1. The Union of India Through The Secretary (Revenue), Government of India, Ministry of Finance, Department of Revenue, New Delhi. 2. The Chairman, Central Board of Excise and Customs, Ministry of Finance, Government of India, North Block, New Delhi. 3. The Director General of Vigilance, Customs & Central Excise, Ist & 2nd Floor Hotel Samrat, Kautilya Marg, Chanakya Puri, New Delhi-110021. 4. The Chief Vigilance Officer, Central Board of Excise and Customs, Ministry of Finance, Department of Revenue, Government of India, Bhikaji Kama Place, R.K. Puram, New Delhi. 5. The Chief Commissioner, Central Excise & Service Tax, Ranchi Zone, Patna (Bihar). 6. The Commissioner, Central Excise & Service Tax, Patna (Bihar). 7. The Joint Commissiner (P&V), Central Excise HQRS. Patna (Bihar). Respondents By Advocate: Shri Rajeev Kumar. ORDER
G. Geroge Paracken, Member(J) The Applicants grievance in this case is with regard to the order of the Disciplinary Authority imposing upon the penalty of reducing his pay by 3 (three) stages from Rs.18720/- to Rs.16710/- in the time scale of pay of Rs.9300-34800 for a period of three years with effect from 01.04.2012 with a further direction that he will not earn increments of pay during the period of reduction and the reduction will have the effect of postponing future increments of his pay under Rule 11 (v) of CCS (CCA) Rules, 1965 as upheld by the Appellate Authority.
2. Brief facts: Disciplinary proceedings were initiated against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965 vide Memorandum C.No.Vig-3/08/2007/635 dated 11.06.2007. The statement of Article of Charge framed against him was as under:-
Article-I Whereas Sri Rajeev Kapoor while functioning as an Inspector, Customs, ICS Jogbnani during the period from 2000-01 to 2001-02 has committed gross misconduct/irregularities inasmuch as he connived with the Surat based exported and helped these firms in obtaining certificate of export without actual export to Nepal in order to fulfill their export obligation of 100% EOU and inasmuch as Sri Rajeev Kapoor, Inspector did appraisement/crossing formalities only on documents meant for export thus, becoming the part of the conspiracy at LCS Jogbani in fraudulent and bogus export effected only on paper.
As such, Sri Rajeev Kapoor while functioning as an Inspector at LCS Jogbani has contravened the Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964 as such he failed to maintain absolute integrity and devotion to duty and acted in a manner which is unbecoming of a Government Servant.
3. According to the statement of imputation of misconduct attached with the Article of Charge, after passing of the bill of export by assessing officer, the officer on crossing duty was required to check goods physically and see whether duty and cess, if any, assessed has been paid or not before ordering for passing out of customs charge. The names of the assessing officer and crossing officers in the case were as under:-
List-A Sl.No. Name of Assessing Officer Designation
1.
S/Shri Girish Chandara Inspector
2. Ramanand Prasad Inspector
3. Anand Kumar Inspector
4. Dhirendra Kumar Inspector
5. U.S. Prasad Inspector (now Superintendent)
6. Ravi Sharma Inspector
7. Brahm Dev Bhagat Inspector (now Superintendent
8. Smt. Ramjeet Kumari Inspector
9. Smt. Sulochna Kumar Inspector (now Superintendent) List-B Sl.No. Name of Crossing Officer Designation
1. S/Shri Girish Chandara Inspector
2. Janardhan Sharma Inspector
3. Dhirendra Kumar Inspector
4. S.K. Sinha Inspector
5. Ravi Sharma Inspector
6. Prem Bahadur Lal Inspector
7. Anand Kumar Inspector
8. Ramanand Prasad Inspector
9. Ashok Kumar Inspector
10. K.S. Lal Inspector (now Superintendent)
11. J.P. Singh Inspector
12. Rajiv Kapoor Inspector
4. The Inquiry Officer conducted separate and detailed enquiry in the matter. In the case of the Applicant, the Enquiry Officer identified the following six ingredients in the aforesaid charge:-
(i) Connivance with Surat based exporters.
(ii) help rendered to these Surat based exporters in obtaining certificate of export without actual export to Nepal in order to fulfill their export obligation of 100% EOU.
(iii) The CO did appraisement/crossing formalities only on documents meant for export.
(iv) Thus, becoming the part of the conspiracy at LCS Jogbani in fraudulent and bogus export effected only on paper.
(v) The CO failed to maintain absolute integrity and devotion to duty.
(vi) The CO acted in a manner which is unbecoming of a Government servant.
After analyzing each of the aforesaid ingredients, the Inquiry Officer came to the conclusion that the charge against the Applicant was not proved. The Disciplinary Authority considered the aforesaid report and agreed with the same. Thereafter, it referred the matter to the Director General of Vigilance (DGV for short), Customs and Central Excise for its 2nd stage advice who vide its U.O. Note dated 24.12.2010 advised the Disciplinary Authority to impose a major penalty upon the Applicant. Similar advice was also given in the case of Shri J.P. Singh, Inspector. In the cases of Inspectors who have since been retired, cut in pension was recommended. In some other cases, imposition of minor penalties was also recommended. The final recommendations of the Director General (Vigilance) were as under:- 5. Final Recommendation:
2nd stage advice is solicited in respect of the following officers in terms of discussions contained in para 3 and 4 above. Disciplinary Authoritys recommendation and penalty proposed by CVO in respect of these officers is summarized below:-
Sr.No. Name Designation DAs Recommendation CVOs Proposal
1.
Sri Ramanand Prasad Inspr. (Retd.) Not proved. Exoneration.
Major (cut in pension)
2. Sri Prem Bahadur Lal Inspr. (Retd.)
-DO-
Major (cut in pension)
3. Sri J.P. Singh Inspr.
-DO-
Major
4. Sri Rajiv Kapoor Inspr.
-DO-
Major
5. Sri Janardan Sharma Inspr. (Retd.)
-DO-
Major (cut in pension)
6. Sri U S Prasad Inspr. (Now Supdt.) Not proved.
Major/ Minor
7. Sri Braham Deo Bhagat Inspr. (Supdt. Retd.) Not Proved. Exoneration.
Govt. Disp.
8. Smt. Ramjeet Kumari Inspr.
-DO-
Minor
9. Smt. Sulochna Kumari Inspr. (Supdt. Retd.)
-DO-
Govt. Disp.
5. Thereafter, the Disciplinary Authority issued a Note of Disagreement on 07.10.2011 stating that the enquiry authority did not examine the charges against the Applicant in the context of his role and responsibilities as assessment/crossing officer and, therefore, the report dated 23.06.2009 submitted by the Inquiring Authority is not fair, proper and acceptable. The Applicant made a representation against the aforesaid Note on 17.11.2010 stating it has gone beyond the scope of the Charge Memorandum and it was issued without discussing and disputing the findings of the Enquiry Officer. However, the Disciplinary Authority, vide its order dated 16.03.2012 imposed upon him the penalty of reducing his pay by 3 (three) stages from Rs.18720/- to Rs.16710/- in the time scale of pay of Rs.9300-34800 for a period of three years with effect from 01.04.2012. It has been further directed that he will not earn increments of pay during the period of reduction and the reduction will have the effect of postponing future increments of his pay under Rule 11 (v) of CCS (CCA) Rules, 1965. The Applicant made appeal dated 16.5.2012 against the aforesaid order of the Disciplinary Authority dated 16.03.2012 but the Appellate Authority, vide its order dated 19.12.2012, rejected it.
6. The Applicant has challenged the aforesaid orders of the Disciplinary Authority and the Appellate Authority in this Original Application on the ground that the entire procedure adopted by the Disciplinary Authority as well as the Appellate Authority is in total violation of the CCS (CCA) Rules, 1965 and the law laid down by the Apex Court on the issues involved in the matter. His contention is that once the Inquiry Officer has submitted his report exonerating him from the charges levelled against him and the Disciplinary Authority has accepted the same, no external authority can consider his case and give its advice in the matter. Further, he has submitted that the Disagreement Note issued by the Disciplinary Authority to the Applicant is not a Disagreement Note in the eyes of law as the same has been issued in violation of Rule 15 of the CCS (CCA) Rules, 1965. He argued further that if the Disciplinary Authority wants to disagree with the findings of the Inquiry Officer, it is for the said authority alone to do so after due application of mind and not at the behest of the CVO or the CVC. Again, he has stated that in a Disagreement Note, as envisaged in the CCS (CCA) Rules, 1965, the Disciplinary Authority may disagree with the reasoning and findings given by the Inquiry Officer but in the impugned Disagreement Note no point of disagreement has been mentioned. Further, he has stated that the Disciplinary Authority has acted without any application of mind and he has only executed the orders of the CVC/CVO of the Respondent-Department. The other contention of the Applicant is that in identical cases of other Superintendents who also have been imposed with the similar punishment after disagreeing with the findings of the Inquiry Officer, the Appellate Authority has set aside the orders of the Disciplinary Authority. In this regard, he has produced a copy of the Order No.C.II(26)6-Vig./Appeal/CCO/RZP/2011 dated 21.09.2011 issued by the Appellate Authority in the case of Shri U.S. Prasad, Ashok Kumar, S.K. Sinha and Shri Anand Kumar, all Inspectors, Central Excise and Customs. Relevant part of the said order reads as under:-
This appeal has arisen out of four number of Order-in-Original passed by Shri J.K. Jha, Commissioner of Central Excise & Service Tax, Jamshedpur in capacity of Disciplinary Authority (DA) imposing penalty as given below:-
1. Order-in-Original dated 06.07.2011 of Shri J.K. Jha, Commissioner, Central Excise & Service Tax, Jamshedpur communicated vide C.No. II(10-A)I-Con/JSR/2007-808 dated 06.07.2011 in case of Shri U.S. Prasad, Superintendent, Central Excise, Division-IV, Jamshedpur under which one increment of the appellant has been with held in the time-scale of pay of Rs.9300-34800/- i.e. he shall not got his next increment due on 01.07.2012.
2. Order-in-Original dated 26.07.2011 of Shri J.K. Jha, Commissioner, Central Excise & Service Tax, Jamshedpur communicated vide C.No.II(10-A) 4-Con/ISR/2007/896 dated 26.07.2011 in case of Shri Ashok Kumar, Superintendent, Central Excise Hqrs (Audit), Jamshedpur, under which pay of the appellant has been reduced by 3 (three) stages from Rs.18,950/- to Rs.16,880/- in the time-scale of pay of Rs.9300-34800/- for a period of 3 (three) years with effect from 01.08.2011 and further he would not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments of pay.
3. Order-in-Original dated 08.03.2011 of Shri J.K. Jha, Commissioner, Central Excise & Service Tax, Jamshedpur communicated vide C.No. II(10-A)2-Con/JSR/2007/ 945 dated 08.08.2011 in case of Shri S.K. Sinha, Inspector Central Excise Hqrs (Audit), Jamshedpur under which pay of the appellant has been reduced by 3(three) stages from Rs.18,720/- to Rs.16,710/- in the time-scale of pay of Rs.9300-34800/- for a period of 3 (three) years with effect from 08.08.2011 and further he would not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments of pay.
4. Order-in-Original dated 10.08.2011 of Shri J.K. Jha, Commissioner, Central Excise & Service Tax, Jamshedpur communicated vide C.No.II (10-A) 6-Con/JSR/2009/ 958 dated 10.08.2011 received on 11.08.2011 in case of Shri Anand Kumar Inspector, Central Excise Hqrs (Audit), Jamshedpur under which pay of the appellant has been reduced by 4 (four) stages from Rs.18,720/- to Rs.16,080/- in the time-scale of pay of Rs.9300-34800/- for a period of 3 (three) years with effect from 10.08.2011 and further he would not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments of pay. XXX XXX XXX As stated above, the charge framed is that officers have connived with the Surat based exporters in obtaining certificates of export without actual export to Nepal in order to fulfill their export obligations of 100% EOU and has played an active role in doing appraisement/crossing formalities only on documents meant for export and not ensuring that exports have actually taken place. Clearly the specific charges are three fold.
1. Connivance with Surat based exporters in obtaining certificate of export without actual export to Nepal in order to fulfill their export obligation of 100% EOU
2. Playing an active role in doing appraisement/cross formalities only on documents
3. Not ensuring that exports actually have taken place.
Other charges are the very general ones, viz., The CO failed to maintain absolute integrity and devotion to duty, and the CO acted in a manner which is unbecoming of a Government Servant. Apparently, these charges are based on the findings of the three specific charges mentioned above and are violation of provisions of Central service (Conduct) Rules, 1964, required to impose penalties under CCS(CCA) Rules, 1965. Inquiry Report has given the view that the charges are not proved. Disciplinary Authority (DA) has disagreed and has found the Charged Officers(COs) guilty and has imposed minor/major penalty as enumerated in the brief facts of the case. Interestingly, DA has not said in his order that the officers had a connivance with Surat based parties. Connivance means silent or indirect assent to wrong doing knowingly. DA surely has found conspiracy which is stronger word than connivance. I shall briefly summarize the evidence which DA had found sufficient to prove the guilt of COs.
XXX XXX XXX Thus, I find that though fraud by the exporter is quite a probability, connivance of officers (COs) is not taken to be proved by DA. COs could only do the appraisement formalities on paper/documents and allow crossing without physical examination of the consignment unless otherwise instructed by superior officers and the fact of export being doubtful, the COs could not possibly ensure anything as to export or non-export. This disposes of the articles of charge framed against the charged officers. Order On the basis of above discussion, I under the authority of Rule 27 of CCS(CCA) Rules 1965 set aside the penalties awarded to each of the appellant with immediate effect.
7. The learned counsel for the Applicant has also relied upon the following judgments in support of the aforesaid contentions:-
(i) OA No.133 of 2010 Manoj Kumar Barman Vs. Union of India and Others passed by the Guwahati Bench of this Tribunal (2013 (2) CAT 299) wherein it has been held that once the Applicant has been exonerated and the Disciplinary Authority has accepted it, no re-enquiry can be held at the behest of the CVC.
(2) OA No.53/1994 B.C. Tewari Vs. Union of India and Others decided by the Guwahati Bench of this Tribunal 1996 (32) ATC 404 wherein it has been held that the statutory disciplinary rules do not require consultation with CVC and, therefore, the penalty imposed by the Disciplinary Authority on the advice of CV without applying its own mind is invalid.
(3) Civil Appeal No.5943 of 2007 Akhilesh Kumar Singh Vs. Sate of Jharkhand and Others 2009 (1) SLJ 171 wherein it was held that persons with similar charges should be given the same benefits.
8. The Respondents in their reply have submitted that the aforesaid contention of the Applicant is devoid of any merit. They have also submitted that the Disciplinary Authority has passed its order on 16/20.03.2012 only after considering the Charge Memorandum, all documents relevant to the case, the Inquiry Officers report, reply of the Applicant and Disagreement Note. Therefore, the Disciplinary Authoritys order is just and proper. They have also stated that the Appellate Authoritys order dated 19.12.2012 upholding the order of the Disciplinary Authority dated 16/20.03.2012 was passed after due diligence and considering all the aspects and the facts of the entire issue.
9. We have heard the learned counsel for the Applicant Shri A.K. Behra and the learned counsel for the Respondents Shri Rajeev Kumar. We fully agree with the learned counsel for the Applicant that the Disciplinary Authority has passed its orders in total violation of the provisions contained in CCS (CCA) Rules, 1965. The procedure to be followed in case where the Disciplinary Authority disagrees with the findings of the Inquiry Officer has been provided in Rule 15(2) of the aforesaid rules. A perusal of the aforesaid sub-rule (2) would reveal that the tentative reasons for disagreement shall be that of the Disciplinary Authority alone after applying its mind and not on the basis of any other extraneous considerations or outside interference. However, in the present case, it is seen that the Disciplinary Authority has applied its mind on the Inquiry Officers report and came to his own conclusion that the charges levelled against the Applicant was not proved as reported by the Inquiry Officer. However, for strange reasons, the Disciplinary Authority referred the matter to the Director General of Vigilance for its advice. The Director General of Vigilance consulted the CVC who in turn decided that major penalty proceedings should be initiated against the Applicant. In our considered view, first of all the Disciplinary Authority after coming to his own conclusion that he was agreeing with the findings of the Inquiry Officer, he should not have referred the Applicants case to any other external authorities like CVO and CVC. Once the Disciplinary Authority has come to its conclusion that the Inquiry Officers report exonerating the Applicant was in order, even if the matter was referred to the CVO/CVC for any reasons, they should have restrained themselves from asking the Disciplinary Authority to impose penalty, as they have no role to play in the matter. Further, it is seen that the CVO/CVC has gone to the extent of even directing the Disciplinary Authority to put up a draft note for their vetting. In our considered view, such interference by the CVO/CVC in disciplinary matters against the Government servant is totally unwarranted and cannot be appreciated.
10. Again, as rightly argued by the learned counsel for the Applicant Shri A.K. Behera, the tentative reasons for disagreement shall be on the findings of the Inquiry Officer on the Article of Charge and not on anything else. However, the Note of Disagreement on Inquiry Officers report dated 07.10.2011 issued by the Disciplinary Authority, it is seen that the contention of the Disciplinary Authority was that the Inquiry Officer did not examine the charges against the Applicant in the context of his role and responsibilities as assessment/crossing officer and the report dated 23.06.2009 submitted by the Inquiring Authority was not fair, proper and acceptable. In fact, the aforesaid Note of Disagreement does not speak of any of the reasons why the Disciplinary Authority has disagreed with the findings of the Inquiry Officer. The Applicant has submitted a detailed representation dated 17.11.2011 against the Disagreement Note of the Disciplinary Authority dated 07.10.2011. However, the Disciplinary Authority except mentioning the fact of issuing the Note of Disagreement to the Applicants representation did not mention as to why the said Disagreement Note was not sustainable as stated by the Applicant. We also find that the Appellate Authority has not acted in accordance with Rule 27 of the CCS (CCA) Rules, 1965. Under sub-rule (2) of the aforesaid rules, it is incumbent upon the Appellate Authority to consider whether the procedure laid down in the rules has been complied with and the findings of the Inquiring Authority were warranted by the evidence on record. It is also required to see, according to the aforesaid sub-rule, whether the penalty imposed upon the Applicant was adequate, inadequate or severe. However, a perusal of the Appellate Authoritys order reveals that he has in a mechanical manner stated therein that the Disciplinary Authority issued its order after following the laid down procedure and taking into cognizance of each and every submission made by the appellant.
11. We, in the above facts and circumstances of the case, are of the considered view that the Disagreement Note dated 07.10.2011 and the order dated 16/20.03.2012 of the Disciplinary Authority and the Appellate Authoritys order dated 19.12.2012 are arbitrary, illegal and unconstitutional. They have been passed in blatant violation of the procedure laid down in the CCS (CCA) Rules, 1965. Consequently, we quash and set aside them. Consequently, we also direct the respondents to restore the pay of the Applicant with all attendant benefits including arrears of pay and allowances. The aforesaid direction shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
12. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh