Central Administrative Tribunal - Hyderabad
Shri D. Sukumar S/O Shri Dharmalingam vs The Chairman, Central Board Of Excise ... on 4 June, 2007
ORDER
M. Jayaraman, Member (Admn.)
1. The present OA has been filed praying for setting aside the Memo dated 4.10.2006 in pursuance of which the 3rd respondent has proposed to hold an inquiry against the applicant in terms of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
2. The brief facts of the case here are that the applicant joined the Department of Central Excise as Inspector on 1.8.1977 and he was promoted as Superintendent, Central Excise on 1.8.1992. While he was working as Inspector, Customs in the Unaccompanied Baggage Unit (UB Unit) in Aircargo Complex, Begumpet, Hyderabad, Central Bureau of Investigation, Hyderabad conducted certain checks on 2.5.1992 and in pursuance of the subsequent investigations, a charge sheet was filed by the CBI in the Court of the Special Judge for CBI Cases, Hyderabad, vide C.C. No. 17 of 1998 for launching prosecution of the applicant along with Shri D.V. Subba Rao, Superintendent, Customs. However, after the full trial, the Court, vide order dated 23.12.2003 observed that the entire exercise done by the CBI on 2.5.1992 and the subsequent searches etc., without first registering FIR, would be illegal and accordingly acquitted the applicant as also the other party. In the meantime, the respondents' office had prepared a list of officers in the cadre of Superintendents who were eligible for the benefit of the Assured Career Progression Scheme (ACP scheme) on completion of 12 years from the date of first promotion i.e., with effect from 2001. Though the applicant's name was figuring in this list, the applicant's case was not considered since criminal proceedings were pending. After conclusion of the trial and the acquittal, the applicant submitted a representation dated 28.4.2004 for the grant of the ACP. Another representation dated 10.8.2004 was filed for releasing advance rewards granted to him in 1994 and 2001 since the same were withheld for want of vigilance clearance. A further representation dated 27.7.2006 was also filed by the applicant. It is understood that a criminal appeal No. 213/2005 has been filed by the CBI in the High Court of Andhra Pradesh against the acquittal of the applicant and for this reason, the ACP was not extended to the applicant. However, though the criminal appeal has been admitted on 24.2.2005, no stay has been granted by the Hon'ble High Court. Now, the 2nd respondent, being the disciplinary authority, issued the impugned charge memo dated 4.10.2006 on the applicant for imposition of a major penalty. Accordingly, the present OA has been filed.
3. The matter was heard extensively through Shri K.R.K.V. Prasad, learned Counsel for the applicant as also Shri M.C. Jacob, learned standing counsel for the respondents.
4. The main grounds on which the applicant has sought the relief in this OA are that the charge memo has been issued for conducting disciplinary proceedings after the same set of facts and the allegations were examined by a competent court of law which acquitted the applicant. So, this is in violation of the law settled by the Hon'ble Supreme Court in the case of G.M. Tank v. State of Gujarat and Anr. reported in 2006 (4) SCJ 1. The applicant has also relied on the case law in the case of Sulekh Chand v. Commissioner of Police reported in 1994 (Sup) (3) SCC 674. The further ground taken by the applicant is that the action has been initiated after 14 years after the alleged misconduct surfaced, which is in violation of the law settled by the Supreme Court decided in a number of cases viz., (i) State of Madhya Pradesh v. Bani Singh ; (ii) State of Punjab v. Chaman Lal Goyal ; and (iii) State of A.P. v. N. Radha Krishna . Since the Hon'ble High Court of Andhra Pradesh has not granted any stay in the appeal filed by the CBI, the applicant was entitled to ACP and other cash rewards as held in the case of (i) Delhi Jal Board v. Mahinder Singh reported in 2001 (1) SLJ 398; (ii) Bank of India v. Degala Suryanarayana ; and (iii) K.V. Janakiraman v. Union of India . The applicant has further stated that as per Section 155(2) of the Customs Act, 1962, no initiation of disciplinary proceedings can be taken for anything purporting to be done in pursuance of the Customs Act after a lapse of three months unless one month prior notice is issued within such period and accordingly also the proceedings are hit by limitation. He has relied on the following case laws:
(i) Golla Rama Rao v. Union of India reported in 2000 (124) ELT 112 (Mad),
(ii) Rajasthan Tobacco Co. v. Assistant Collector of Central Excise decided by the Hon'ble High Court of Andhra Pradesh;
(iii) Collector of Customs v. M.I. Khan ;
(iv) Hyderabad Allwyn Metal Works Ltd. v. Collector of Central Excise, Hyderabad of the Hon'ble High Court of Andhra Pradesh.
5. The averments made by the counsel for the applicant both during the hearing as also in the OA have been strongly opposed by the respondents who have filed a detailed reply statement. It is stated that the CBI has proceeded against the applicant while he was working as Inspector of Customs and Central Excise at the Air Cargo Complex, Begumpet, Hyderabad. Accordingly, a Criminal Case No. 17/98 was filed in the Court of Special Judge for CBI Cases, Hyderabad for action under Section 120-B read with 420 and 468 of IPC as also under the Prevention of Corruption Act, 1988. The charges related to criminal conspiracy in clearing the baggage of Accused-3 for pecuniary gain. However, the applicant has been acquitted in the said criminal case by Judgment dated 23.12.2003 as the prosecution has failed to prove the charges. An appeal has been preferred before the Hon'ble High Court vide Criminal Appeal No. 213/2005 which is pending. After the acquittal of the applicant, the disciplinary authority decided to proceed against the applicant departmentally for violating the departmental rules and accordingly the impugned memo dated 4.10.2006 was issued directing him to submit written statement of defence within 10 days of the receipt of the memo and also to state whether he desires to be heard in person. The articles of charges against the applicant as per Annexure-I relates to allowing the unaccompanied baggage of Smt. Quamrunissa Begum consisting of two packets of 3000 Konica films duty free by abusing his official position as a public servant and obtained pecuniary advantage to the passenger to a tune of Rs. 60,000/- and corresponding loss to the department thereby acted in a manner unbecoming of a Government servant and thereby violated the Conduct Rules. Annexure-II of the memo contains the imputations in support of the said charges and Annexures III and IV are the list of documents and the list of witnesses by which the articles of charge to be sustained. The applicant without submitting his statement of defence as directed in the memo, has filed the present OA and at the time of admission on 6.11.2006, the Tribunal granted the interim order staying any further proceedings pursuant to the above Memorandum. The respondents have asserted that the above memo has been correctly issued in accordance with the rules. There is no rule disabling the said authority in issuing the same. The applicant can submit the defense available to him including the contentions raised in the present OA before the disciplinary authority and, as such, the OA is liable to be dismissed. The only ground urged by the applicant in regard to the delay based on the Hon'ble Supreme Court decisions has to be considered by the competent authority and if the same were rejected without any valid grounds, then the applicant has got a grievance and in the absence of the same the present proceedings vide memo dated 4.10.2006 are perfectly legal and valid. It is further stated that departmental proceedings operate in different field and so even after the acquittal by the criminal court, department can proceed for violation of the departmental rules and there is no bar for such proceedings. The contention that the charge sheet is issued after a gap of 14 years is not correct because the criminal proceedings ended on 23.12.2003. During the pendency of the same, no departmental proceedings can be initiated to avoid prejudice to the applicant in the criminal proceedings and as per the Vigilance Manual, it is only after the acquittal of the competent court, the disciplinary authority should decide whether in the facts and circumstances of the case, any departmental inquiry was called for or not. In this case, after the acquittal order was received, the competent authority has duly considered and decided to proceed departmentally and that is how the memo dated 4.10.2006 has been issued. With regard to the specific point of violation of Section155(2), the respondents have stated that it has no relevance as the impugned proceedings were initiated under Rule 14 of the CCS (CCA) Rules for violation of Conduct Rules. In the criminal case, the prosecution had alleged conspiracy, cheating etc., whereas in the departmental proceedings, it is only to explore the complexity of the applicant in the alleged incident violating the conduct rules and as such both the proceedings cannot be equated.
6. The respondents have also cited the case of D. Venkateswarlu v. Senior Divisional Commercial Manager, South Central Railway, Guntakal Division, Anantapur, decided by the Hon'ble High Court of Andhra Pradesh .
7. We find sufficient force in the submissions made by the respondents. As pointed out by the counsel for the respondents, the case before the Criminal Court was totally different from the case now being initiated by the department. As aptly stated by the Hon'ble Special Judge for CBI Cases in the beginning of the judgment that it was a case of criminal conspiracy, cheating, forgery and criminal misconduct said to have committed by A.1 to A.3 and investigated by CBI, Hyderabad and as narrated on internal pages 2 and 3 of the above judgment, all the three accused have entered into a criminal conspiracy and in pursuance of the same, A.1 to A.3 got booked baggage at Jeddah, Soudi Arabia declaring it as used clothes, but actually kept Konica color films and both the accused A.1 and A.2 abused their position as public servants and allowed the unaccompanied baggage of A.3 to go out of the UB Unit of Air Cargo Customs charging nil duty and thereby caused wrongful loss of Rs. 1,50,000/- to the Government of India and obtained corresponding pecuniary gain to the private person and thus committed the offence punishable under Sections 120(b), 420, 468 IPC and Section 13(2) read with 13(1)(d) of Preventive of Corruption Act, 1988. After examining the whole issue, the Hon'ble Judge held that the entire exercise in this case was done on 2.5.92 without first registering the FIR and, therefore, all the proceedings conducted without registering the FIR would amount to illegal, in view of the decision of the Hon'ble High Court of Andhra Pradesh reported in 2003 (2) ALD Crl. Page 362 in the case of Reddy Rammohan Rao v. Additional Commissioner of Police, Hyderabad and Ors. The Judge further observed that the FIR was registered on 6.7.92 and the investigation was completed by filing the charge sheet and that there was absolutely no material on record to show as to what happened in between 2.5.92 and 6.7.92. The Judge further observed that it was also not explained as to why A.1 and A.2 were left on 2.5.92 when PW. 1 noticed such a grave misconduct on the part of A.1 and A.2 and that, why the PW. 1 left A.1 and A.2 without any action on 2.5.92 when his information proved to be true and that all these aspects, therefore, create any amount of doubt as to the correctness of prosecution version. The Judge further held that on a thorough scrutiny of the entire evidence on record with reference to the allegations made against the accused, that the prosecution failed to prove any of the charges levelled against the accused and the point is accordingly held against the prosecution. He accordingly held that both the accused were not found guilty. Thus, it is clear that the decision was mainly based on the technical ground that FIR was not first registered before conducting searches etc. and in any case the applicant was acquitted in the criminal charge on conspiracy etc., under Sections 120-B, 420, 468 IPC and under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988 whereas in the impugned memo, as is clearly brought out, the inquiry is being proposed to be held against the applicant under Rule 14 of the CCS (CCA) Rules and as per the statement of articles of charges, the applicant was found to have committed grave misconduct by allowing the unaccompanied baggage of Smt. Quamrunissa Begum, consisting of two packets of 3,000 Konica films duty free, by abusing his official position as a public servant and obtained pecuniary advantage to Smt; Quamrunissa Begum to a tune of Rs. 60,000/- and corresponding loss to the Department and thus the applicant by the aforesaid act has exhibited lack of integrity, devotion to duty and acted in a manner unbecoming of a government servant and thereby violated Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964. From the above, it is clear that the two proceedings are distinct and do not over lap though the incident was the same. Therefore, we do not agree with the contention of the applicant that on identical facts and circumstances, the departmental proceedings are sought to be initiated against the applicant illegally. Therefore, the first contention of the applicant that the charge memo is illegally issued, has to be rejected on this score.
8. The second contention of the applicant is with regard to the delay. It is stated that the incident took place in 1992 whereas the charge memo has been issued in October 2006 i.e., after a delay of 14 years. As pointed out by the respondents, the Hon'ble High Court has held in the case of D. Venkateswarlu (supra) that the delay in initiating the proceedings cannot be a ground to interfere with the disciplinary proceedings at the threshold of issuance of charge memo. Court can interfere only if the delinquent was subjected to apparent prejudice in defending himself against the charges and whether the said delay landed the delinquent in such an adverse situation is a question of fact to be decided depending upon the facts and circumstances of the case. Accordingly, in the cited cases, the Hon'ble Court dismissed the writ petition filed by the delinquent official and did not interfere with the disciplinary proceedings initiated by the respondents in that case. In our opinion, this decision of the Andhra Pradesh High Court would come into play in the present case. It is not merely the number of years that need to be counted from the date of occurrence or the incident. As pointed by the respondents, though they had been aware of the incident, they did not initiate disciplinary proceedings because the criminal proceedings, already initiated, were pending. The said criminal proceedings ended only in 2003 with the pronouncement of the judgment of the Special Judge for CBI Cases on 23.12.2003 and in pursuance of the instructions of the Vigilance Manual, the competent authority then applied his mind and examined the matter and then decided to initiate action which resulted in the impugned charge memo. We are, therefore, not impressed by the pleadings of the applicant for interfering in the matter merely on the ground that a long time has passed between the date of occurrence till the date of issue of the charge sheet. As pointed out by the respondents, according to the ruling of the Supreme Court in Nagpur City Corporation v. Ram Chandra and Ors. SC 396 of 1980 SLR 1981 (2), even where the accused public servant is acquitted and exonerated of an offence, such acquittal does not bar a departmental inquiry from holding disciplinary proceedings against the accused public servant. In view of the above, none of the case laws cited by the applicant are relevant to the issue or would advance his case.
9. With regard to the specific allegation regarding limitation made by the applicant under Section 155 of the Act, we are unable to understand the point sought to be made here. Section 155 of the Customs Act is reproduced below:
155. Protection of action taken under the Act No suit, prosecution or other legal proceeding shall lie against the Central government or any officer of the Government or a local authority for anything which is done or intended to be done in good faith, in pursuance of this Act or the rules or regulations.
(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Governmentor a local authority for anything purporting to be done in pursuance of this Act without giving the Central government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause.
10. As is clear from the above, Section 155 seeks to grant protection of action taken under the Act to the Customs officers from outsiders viz., passengers, importers or traders or exporters who may like to initiate legal proceedings against the customs officer for bonafide action taken by them in accordance with the rules. It is in this regard, Sub-section (2) lays down the time limit of two months and no proceedings other than a suit shall be commenced against the Central Government or any officer or a local authority for any thing purporting to be done in pursuance of the Customs Act without putting them to notice after the expiry of three months. In other words, this section is totally irrelevant so far as the disciplinary action that the respondents are contemplating against the applicant which are governed by different set of rules like CCS (Conduct) Rules or CCS (CCA) Rules etc. In view of the above, the case law cited by the applicant in this regard, does not come to his rescue. We, therefore, have to reject this contention of the applicant as well.
11. The main contention of the applicant that the impugned charge memo is based on identical facts as that of the charge sheet filed in the criminal case and so cannot be maintained, is also found to be not correct. On a careful reading of the charge sheet filed by the CBI in the Hon'ble Court of Special Judge for CBI Cases, Hyderabad, it is clear that the entire case narrated revolved around the offences under Sections 12-B, 420, 468 IPC and how they were committed by conspiracy by all the accused A.1, A.2 and A.3, whereas in the proposed charge sheet, as seen from the statement of imputation of misconduct, it is seen that the charge sheet centres around the precise procedure which the applicant ought to have followed and what he actually did, has been narrated to show how the applicant had exhibited lack of integrity and devotion to duty and acted in a manner unbecoming of a public servant. For example, there is no whisper about any specific act by the present applicant in the charge sheet filed by the CBI. It mentions only the name of A.1 Shri D.V. Subba Rao whereas in the proposed charge sheet, the role played by the applicant seems to have been highlighted which talks about the duty of the applicant to write about the contents of the package after check and to also sign it in the U.B. form whereas the applicant seems to have certified that the package consisted of used clothes and utensils and accepted the passenger declaration being an old lady which, according to the department, is contrary to the guidelines. From the above narration, it is clear that the charges that have been framed in the proposed charge sheet are totally different and have direct relevance to the departmental instructions which did not appear to have been followed by the applicant whereas the charge sheet filed by the CBI has relevance only to the conspiracy case which was prosecuted by the CBI in the criminal court of law. Seen from this point of view also, we find no substance in the averment made by the applicant that departmental action is sought to be taken on identical charge sheet proposed to be issued by the respondents.
12. In view of what has been discussed above, we find no merit in the OA which deserves to be dismissed. We order accordingly. Parties will bear their own costs.