Central Administrative Tribunal - Ahmedabad
C B S Birana vs Central Board Of Excise & Custom on 3 April, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH,
AHMEDABAD
O.A. No.330 of 2017
M.A. No.311 of 2017
Orders reserved on :13.02.2025
Orders pronounced on :03.04.2025
Hon'ble Mr. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
C.B.S.Birana,
Inspector Customs,
Office of the Deputy Commissioner of customs
Customs Division, 2ND Floor,
Urmi Complex, Behind Centre Point
Sagrampura, Ring Road,
Surat-395 002
......Applicant
(By Advocate: Shri D.K. Trivedi)
VERSUS
(1) Union of India,
Notice to be served through:
The Secretary,
Ministry of Finance,
Department of Expenditure,
North Block,
New Delhi- 110001
(2) President of India through
Secretary to the Government of India,
Ministry of Finance, Department of Revenue,
6th Floor, Hudco Vishala Building,
Bhikaji Cama Place, R.K. Puram,
New Delhi-66
2 OA No.330 of 2017
(3) Chief Commissioner of Customs
Gujarat zone,
2nd Floor, Custom House,
Navrangpura
Ahmedabad - 380 009.
(4) Commissioner of Customs,
Gujarat zone,
Custom House, Nr. AIl India Radio Bulg,
Navrangpura,
Ahmedabad - 380 009.
(5) Commissioner,
Office of the Commissioner of
Central Excise & Service Tax, Surat II.
New Central Excise Building,
5th Floor, Chowk Bazaar, Opp. Gandhi Baug,
Surat-395001
(6) Additional Commissioner
Central Excise & Customs,
Surat 1,
New Central Excise Building,
5th Floor, Chowk Bazaar, Opp. Gandhi Baug,
Surat-395001
...Respondents
(By Advocate: Shri H.D. Shukla)
ORDER
Hon'ble Mr. Jayesh V. Bhairavia, Member (J):
M.A. No.311 of 2017 Along with the Original Application No.330/2017, the applicant has also filed the present MA seeking condonation of delay of 34 days in filing the accompanying OA.
3 OA No.330 of 20172. Keeping in view the submissions and grounds mentioned in the present MA and in the interest of justice, the present MA is allowed and accordingly delay in filing the OA is condoned.
O.A. No.330 of 2017Being aggrieved by the order dated 24/30.05.2016 (Annexure A/1) vide which the revision petition of the applicant had been rejected by the competent authority holding that the disciplinary and appellate authorities had already passed the detailed orders and moreover, the Appellate Authority had already reduced the quantum of penalty imposed by the Disciplinary Authority, the instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:-
"a) The impugned Order No. 7/2016 dtd. 24.05.2016 passed by the respondent no. 2 above named may please be quashed and set aside;
b) The impugned Order-In-Appeal 30/07/2015 passed by the Commissioner/Vig./2015 dtd.
respondent no.3 above named may please be quashed and set aside;
c) The Order-in-Original dated 20.01.2015 passed by respondent no.4 above named may please be quashed and set aside;
d) The Memorandum of disagreement bearing F.No.II/8(Vig)04(A)/2008 dtd. 31/01/2014 issued by the respondent no. 5 above named may kindly be quashed and set aside;
e) The Hon'ble Tribunal may be pleased to hold that the charges being framed by charge memorandum dtd. 12/03/2008 being framed by the respondent no. 6 above named having not been proved against applicant, no penalty is imposable;
4 OA No.330 of 2017f) Consequential relief arising out of the aforesaid relieves mentioned at clause (a) to (d) above may kindly be granted to the applicant herein;
f) Personal hearing may please be granted to the applicant herein;
and
h) Any other relief, as may be deemed fit, in the facts and circumstances of the case may be granted."
2. Brief facts of the case leading to filing of this OA are as under:-
2.1 The applicant while was working as Inspector, Central Excise Division-V of Surat I Commissionerate under the office of Deputy Commissioner of Customs, was issued a Charge memorandum dated 12.03.2008 (Annexure A/5 refer), which includes Articles of charges (Annexure-I), Statement of Imputation of misconduct or misbehaviour in support of articles of charge (Annexure-II), List of documents by which articles framed of charge on the following articles of charge(s) framed against the applicant (Annexure-III) as well as list of witnesses (Annexure-IV). The articles of charges framed against the applicant are as under:-
1. ARTICLE OF CHARGE-I:
Shri C.B.S. Birana, while functioning as an Inspector of Central Excise, Division -V of Surat I Commissionerate had Processed 24 fraudulent rebate claims based on forged export documents involving Rs.69.9 lakhs, in a routine manner and out of turn even though 5 OA No.330 of 2017 the documents pima facie revealed gross anomalies. He had not taken steps as expected of him as an Inspector to scrutinize rebate claims before putting up the same for sanction. Had he scrutinized the claims and supporting documents properly the fraud could have been detected without loss of revenue to the govt. Thus he has exhibited lack of integrity, lack of devotion to duty and acted in a manner unbecoming of a government servant and has thus contravened the provisions of Rule 3 (I) (i), (ii) and (iii) of the Central Civil Service (Conduct) Rules 1964.
2) ARTICLE OF CHARGE -II: -
Shri C.B.S. Birana, while functioning as an Inspector of Central Excise, Division -V of Surat I Commissionerate failed to act as a responsible officer by not ensuring that the prescribed mechanism of receipt of Dak/Tapal in the divisional office, affixing of office seal along with date on the same, entering in the I.C. register with a serial number, distribution and recording of the same within the office, maintenance of outward correspondence register. Thus in doing so, he exhibited lack of devotion to duty and acted in a manner unbecoming of a Government Servant and has thus contravened the provisions of Rule 3(I) (ii), (iii) of the Central Civil Services (Conduct) Rules, 1964.
3)Article Charge -III:-
Shri C.B.S. Birana, while functioning as an Inspector of Central Excise, Division - V of Surat I Commissionerate failed to ensure that proper precautions were taken while accepting rebate claim applications especially the duplicate and triplicate ARE-Is which should have been in tamper proof sealed covers and tried to disown responsibility for the same citing practice followed in Surat Commissionerate. Thus in doing so, he exhibited lack of devotion to duty and acted in a manner unbecoming of a Government Servant and has thus contravened the 6 OA No.330 of 2017 provisions of Rule 3(I) (ii), (iii) of the Central Civil Services (Conduct) Rules, 1964.
4) Article Charge -IV:-
Shri C.B.S. Birana, while functioning as an Inspector of Central Excise, Division -V of Surat I Commissionerate and processing rebate claims, failed to scrutinize the documents and overlooked/ignored glaring anomalies on the Shipping Bills such as the office seal of Jawaharlal Nehru Custom House((NCH) when the Shipping Bill is filed at CFS Mulund, absence of any office seal on the Shipping Bill in some cases Faulty office seals of JNCH, glaringly obvious anomalies on Bills of Lading such as absence of container number. Thus in doing so, he exhibited lack of devotion to duty and acted in a manner unbecoming of a Government Servant and authority and has thus contravened the provisions of Rule 3(I) (ii) and
(iii) of the Central Civil Services (Conduct) Rules, 1964.
5) Article Charge -V:-
Shri C.B.S. Birana, while functioning as an Inspector of Central Excise, Division - V of Surat I Commissionerate had processed rebate claims even though the shipping bills submitted showed long gap of more than one month. Though the date of ARE-I and GR forms were three months prior to the date of Shipping Bills he processed the same without raising any query either from the rebate claimant or from the customs formations. Such abnormal gap in the dates of documents should have been enquired into as the exchange rate in Shipping Bills needed to be changed after the change of month and normally the S/B date and GR form date would have been the same. Thus in doing so, he exhibited lack of devotion to duty and acted in a manner unbecoming of a Government Servant and has thus contravened the provision of Rule 3 (I) (ii) and
(iii) of the Central Civil Services (Conduct) Rules, 1964.7 OA No.330 of 2017
6)Article Charge -VI:-
Shri C.B.S. Birana functioning as an Inspector of Central Excise, Division - V of Surat I Commissionerate had aided in the fraud in as much as the rebate claims of genuine exporters were processed in 2-3 months in his charge whereas the fraudulent claims were sanctioned in less than 15 days and in some cases in less than a week also. Thus in doing so, he exhibited lack of integrity, lack, of devotion to duty and acted in a manner unbecoming of a Government Servant and has thus contravened the provisions of Rule 3(I)(i),(ii) and (iii) of the Central Civil Services (Conduct) Rules, 1964."
2.2 On receipt of above charge Memorandum, the applicant submitted his application dated 4.4.2008 (Annexure A/6 refer) although denying the said charges levelled against him, however, he had also made a request to supply certified copy of the documents mentioned in this said application.
2.3 Thereafter, the Inquiry and Presenting Officers were appointment to conduct the departmental inquiry against the applicant vide order dated 7.1.2009 and subsequently the IO was changed vide order dated 4.8.2009.
2.4 Upon completion of the inquiry, the IO submitted his report dated 28.03.2023 (Annexure A/7 refer) had returned the finding that all the charges (6) 'Not proved'.8 OA No.330 of 2017
2.5 However, on receipt of the aforesaid IO's report, the Disciplinary Authority had issued a Memorandum of Disagreement dated 31.1.2014 (Annexure A/4 refer), which reads as under:-
"Whereas a Charge Memorandum under Rule 14 of CCS (CCA) Rules, 1965 was issued by the Additional Commissioner, Central Excise & Customs, Surat-I to Shri C.B.S. Birana, Inspector vide F. No. II/8(Vig)04(A)/2008 dated 12.03.2008. It was alleged in the said Charge Memorandum that Shri C.B.S. Birana while working as Inspector of Central Excise in Division-V of Surat-I Commissionerate failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant while processing 24 rebate claim files of M/s. Alka Fashions (5 files), M/s. Jhanwar International (8 files), M/s. Biyani Impex (1file) end M/s. TG. International (10 files) and thereby contravened the provisions of sub-rule 3(1) (i), (ii) & (ii) and 3(2) (1) of the CCS (Conduct) Rules, 1964.
2.1 Whereas Shri Nitesh Srivastav, Deputy Commissioner, Central Excise & Customs, Vapi and Shri A K Nautiyal, Superintendent, Central Excise & Customs, Vapi were appointed as an Inquiry Officer & Presenting Officer, respectively vide order dated 07.01.2009 of even file number.
Due to transfer of Shri Nitesh Srivastav, Deputy Commissioner, Shri S K H Meshram the then Assistant Commissioner (now, Joint Commissioner), Central Excise & Customs, Vapi was appointed as an Inquiry Officer vide order dated 04.08.2009 of even file number.
2.2 Whereas Shri S K H Meshram, the then Deputy Commissioner of Customs, Mumbai submitted the Inquiry Report vide letter F.No. I/10A(CON)06/2007 dated 28.03.2013.
2.3 Whereas I, Disciplinary Authority, have gone through the Inquiry Officer's Report dated 28.03.2013, all the related documents, records of the case carefully and observe that the Article of Charges I, II, IV & V of the Charge Memorandum dated 12.03.2008 which 9 OA No.330 of 2017 basically relates to his failure to observe discrepancies like not keeping the sealed cover under which Duplicate/triplicate copies of ARE-I received from Customs Authority/party. Ignoring glaring discrepancies regarding mentioning of wrong date of GR Numbers and fake and faulty office seal of Asstt. Commr. of Customs on the ARE-1 / Shipping Bill & absence of mentioning of details viz. container number on Bill of lading, ignoring glaring discrepancies while processing rebate claims even though the shipping bills submitted showed long gap, the date of ARE- I and GR forms which were three months prior to the date of Shipping Bills, he processed the same without raising any query either from the rebate claimant or from the Customs formations etc. in the rebate documents supplied by the assessee. This basic scrutiny of documents like ARE-1 and Shipping Bills was expected from any normal prudent officer. I observe that Shri C.B.S. Birana, Inspector had processed rebate claims, had failed to notice the discrepancies on the export documents mentioned above and simply signed processed the same. Therefore, I being Disciplinary Authority tentatively disagree with the findings of the Inquiry Officer's on the said Articles of Charges that the charge(s) is/are 'not proved or sustainable' on the grounds that if he had been more vigilant/cautious while scrutinizing/ forwarding the rebate claim documents, the said discrepancies could have definitely been noticed and the forged rebate claims could not have been sanctioned and the precious Government revenue could have been saved. It is observed that it was incumbent on the officer processing the claims to have detected the several discrepancies in the documents on careful scrutiny. Further, I observe that article of Charge-II which basically related to his failure in ensuring that the prescribed mechanism of receipt of Dak/Tapal in the divisional office, affixing of office seal along with date on the same, I tentatively agree with the observation of Inquiry Officer that in all the claim files processed 10 OA No.330 of 2017 there is an inward receipt stamp on the covering letter and files have been put up by the TA to the Charged Officer (CO).
3. In view of the above, a copy of Inquiry Report dated 28.03.2013 is enclosed herewith for submitting defence representation on the same by the CO. A final decision for imposition of penalty under Rule 11 of CCS (CCA) Rules 1965 will be taken after submission of representation, if any, by Shri C.B.S. Birana, Inspector on the Inquiry Officer's report read with including disagreement of the Disciplinary Authority as above.
4. Shri C.B.S. Birana, Inspector, Central Excise, Customs & Service Tax, Surat-II is therefore, requested to submit his written representation within 15 days and also mention whether he would like to be heard in person or not.
5. If Shri C.B.S. Birana, Inspector fails to submit his written representation within the time limit mentioned above, the case will be decided ex parte on the basis of the material evidence adduced in the inquiry."
2.4 From the above disagreement Memorandum, it is apparent that Disciplinary Authority tentatively disagreed on the findings of the IO with regard to Article of charges, i.e., I, III, IV and V and, therefore, through the said disagreement Memorandum, the applicant was requested to submit his written representation within 15 days and also mention whether he would like to be heard in person or not and in case applicant fails to submit his written representation within the time limit, the case will be decided ex parte on the basis of the material evidence adduced in the inquiry.
11 OA No.330 of 20172.5 However, the applicant had not chosen to submit any representation against the aforesaid disagreement Memorandum.
2.6 The Disciplinary Authority referred the matter to the Directorate General of Vigilance seeking second stage advice from them.
2.7 The Directorate General of Vigilance vide letter dated 30.7.2014 tendered their advice whereby advised for imposition of major penalty upon the applicant as he has acted in a gross negligent manner, which resulted in revenue loss.
2.8 The copy of said second stage advice dated 30.7.2014 was also given to the applicant on 9.10.2014 to enable him to file representation, if any.
2.9 The applicant submitted his representation dated 13.11.2014 against the aforesaid second stage advice and disagreement Memorandum. The applicant was also given personal hearing on 11.12.2014.
2.10 Thereafter, the Disciplinary Authority passed the Order, i.e., Order-in-Original No.01/ COMMISSIONER/2015 dated 19.1.2015 (Annexure A/3 refer) imposing upon the applicant the punishment of reduction to a lower stage in the current time scale of pay by three (03) stages from the present pay of 12 OA No.330 of 2017 Rs.19,180/- (Basic Pay) + Rs.4600/- (Grade Pay) to Rs.17,140/- (Basic Pay) + Rs.4600/- (Grade Pay) in the time scale of pay of Rs.9,300- 34,800/- + Rs.4600/- (Grade Pay for a period one (01) year with effect from 01.02.2016, without cumulative effect and further ordered that the applicant will not earn annual increments of his pay during the period of the said pay reduction and that on expiry of the said period, the said reduction will not have the effect of postponing his future increment of pay.
2.11 Aggrieved by the said order of the Disciplinary Authority, the applicant had submitted his appeal (copy not enclosed). The Appellate Authority after considering the same and also affording personal hearing to the applicant on 27.7.2015 rejecting the same vide order dated 30.7.2015 (Annexure A/2 refer), although upheld the findings of the Disciplinary Authority, however, since there was no allegation of any undue monetary benefit having been accrued to the applicant, the aforesaid penalty so awarded by the Disciplinary Authority was reduced by two stages under Rule 11(v) of the CCS (CCA) Rules, 1965 for a period of six (6) months and further ordered that the applicant will not earn increments of pay during the period of reduction and that on the expiry of the above period, the reduction will not have the 13 OA No.330 of 2017 effect of postponing his future increments of pay.
2.12 Thereafter applicant preferred his revision petition (copy not enclosed) which was rejected by the Revisionary Authority vide order dated 24/30.05.2016 (Annexure A/1 refer).
2.13 Hence, this OA.
3. Pursuant to notice issued to the respondents by this Tribunal, they have filed their reply opposing the claim of the applicant.
4. Counsel for the applicant mainly argued that :-
4.1 The Disciplinary Authority made the observation that the applicant was not diligent and tried to escape the responsibility entrusted upon him. Rather the applicant is not trying to escape from the responsibility entrusted upon him by the department. However, it is submitted that the respondents had not taken cognizance of the fact that there is a mechanism of carrying out the work within Central Excise Customs and Service Tax formation so that the work entrusted upon the department is carried out smoothly and can also be supervised, i.e. distribution of the work is made at appropriate levels.
In other words, each and every formation has to carry out specified functions and duties 14 OA No.330 of 2017 which are entrusted upon him/them as per the Central Excise Act, 1944, Rules framed there under, and taking into consideration the circulars issued by the Board of Central Excise & Customs.
The duties and function of each formation in respect of refund/rebate has been specified and for officers of the Rank of Inspector and Superintendent of Divisional offices, the duties and functions have been specified in Circular dated 30.05.1995 (Annexure A/8 refer).
4.2 It is further submitted that that it is not disputed by the Inquiry Officer, as well as the Disciplinary Authority and the Appellate Authority that prior to receipt of files at Applicant's table, the file(s) passes through the following stages, i.e., files were received in divisional office by Tax Assistant. These files were primarily scrutinized by the Tax Assistant and the Divisional Superintendent and not by the applicant, the same was in compliance of Para 2 (b) and (c) of above circular. The Tax Assistant, and the Divisional Superintendent, forwarded the file to Range office for further verification. The Range officers were the concerned officers, who were required to scrutinize the documents, prescribed. The said procedure was followed as per the Boards Circular No.23/88, dated 04.04.1988 (Annexure 15 OA No.330 of 2017 A/9 refer). The said circular and procedure was continued in and affirmed in Circular No. 224/2005-CX.6 dtd.24.12.2008 (Annexure- A/10 refer).
4.3 It is further submitted that the files were received at Applicant's table after receipt of Range report. The received files were already scrutinized initially by Divisional Supdt., and admissibility was scrutinized by Range officer as per above Circulars. Therefore, once the scrutiny is made initially at Divisional level by Superintendent and as per the check list by the Range Office of above referred Circular, there is nothing left with Divisional Inspector but to process the file for official purpose.
4.4 It is argued that once every formation in Central Excise has its specified function and duties, therefore, the function of Range Inspector/ Superintendent cannot be shouldered to the Applicant, who is a Divisional Inspector. Hence, there was no lapse on part of the applicant.
4.5 It is further submitted that sanctioning or rejection claim is a quasi-judicial order, where option is left both with the department as well as with the party to file an appeal at Appellate forums against such order, if they feel themselves aggrieved with the order.
16 OA No.330 of 20174.6 It is again reiterated that the duties and function of Divisional Inspector, has been specified in above Para and as per the prevailing authorities discussed above, during the material time, the scrutiny and verification of Rebate claims were vested upon Range Officers and A.C/D.C., the applicant had not even made recommendations for sanction, as the same being the discretionary power of Assistant Commissioner/ Deputy Commissioner and is a quasi-judicial order.
4.7 Further, it is submitted that there is no restriction for an exporter regarding presenting/loading of a particular consignment of CFS Mulund at JNPT Nhava Sheva Port or at Jawaharlal Nehru Custom House or at any Customs authority within India.
In this regard, reliance has been placed on the information supplied to one of the charged officer under RTI Act, 2005 vide CPIO/ Assistant Commissioner, Central Excise and Customs, Surat-I letter dated 22.12.2009 (Annexure A/11 refer), wherein it has been stated that no instruction was issued and circulated by Central Excise, Surat-I Commissionerate to its field formations regarding verification of shipping bills, regarding mentioning of container no. in the bill of lading, regarding specimen of stamp/seal/ 17 OA No.330 of 2017 Signature of customs officers posted at New Custom House Mumbai/Customs Nhawa Shewa (JNPT) (Exhibit-V)/CFS Mulund and jurisdiction.
4.8 Reliance has also been made to the letter dated 23.12.2005 issued by Assistant Commissioner, Central Excise, Division-II, Surat-I addressed to Deputy Commissioner of Customs, CFS Mulund (Export), Mumbai (Annexure-A/12 refer) which was replied by Superintendent of Custom (P), CFS Mulund (Exp.) vide letter dated 26.12.2005 (Annexure A/13).
In the abovementioned letters issue pertaining to different round seals, brass seals and port of loading other than the port of export was clarified and subsequently rebate was sanctioned by the competent authority.
4.9 Further reliance has been place on the shipping Bills Nos.2000021850, 2000024667 of M/s. Jayprabha Exports, which were procured by him under RTI Act, 2005 (Annexure A/14 refer). The abovementioned shipping bills were found genuine during verification and the rebate claims containing these shipping bills were sanctioned and rebate claim files were post audited by Central Excise HO, Audit, Surat-I and no query/objection was raised.
18 OA No.330 of 2017It is reiterated that in all these shipping bills, port of loading is shown as Mulund (CFS)/ JNPT and on the back side of the said shipping bills, round seal of Jawahalal Nehru Customs House, Nhawa Shewa are affixed whereas the stamp of Superintendent of Customs (P), Mumbai was required to be affixed.
4.10 It is once again reiterated that as far as mention of container number in the Bill of Lading is concerned, the CPIO, JNCH, Raigad vide his Order dated 12.11.2009 (Annexure A/15 refer) issued under F.No.S/12-RTI-320A/09AM(X) has inter alia mentioned that a bill of Lading is contract of carriage between the shipper/ consignor and the carrier of delivers of the shipped cargo to the rightful consignee. Determination of the same is the carrier's business and there are no such instructions, orders, rules, Acts or the Board's Circular insisting to mention container number in Bill of Lading.
4.11 It is vehemently argued that though the charges should have not been levelled against the C.O., as the admissibility of claim were certified by the Range officers after due scrutiny and verification. The above few illustrations will be of great help in arriving at a conclusion that the alleged charges are baseless in view of the different practices being followed in different 19 OA No.330 of 2017 ports of exports at Mumbai. Hence, the learned Commissioner and respected Appellate Authority ought to have considered applicant's defence in dropping of the charge in toto.
In support of above contention, the applicant relies upon the judgment case of Shreemal Silk Mills Vs CCE, Surat reported in 2009(236) ELT 592 wherein the Hon'ble Bench, CESTAT, Ahmadabad had held as under:-
"In the absence of sufficient evidence on record to establish the contravention, imposition of penalty will not sustain. Mere by levelling allegation in the charge memo shall not sustain or enable to the memo to impose any penalty on the delinquent officer. Necessary and substantive evidences have to be brought on record to prove the allegations. In the absence of any ground evidence, the allegations shall not sustain."
4.12 Thus, simply relying on the charges levelled by the investigating agency, the learned Disciplinary Authority has erred in arriving at the above conclusion and had erred in imposing the major penalty upon the applicant. The findings of the learned Inquiry Officer has never been discussed in the entire disagreement note nor by the advice of the Central Vigilance Commission nor in the subject reference order passed by the learned Disciplinary Authority wherein the order has simply and rhetorically repeated the contents of the charge memo and 20 OA No.330 of 2017 not any other grounds or authority of law, Circulars, Trade Notices, Instructions, Sections and Rules framed under Central Excise Act, 1944, so as to substantiate the allegation. Hence, the orders of the Disciplinary Authority and Appellate Authority are not tenable before law and are infructuous in light of the various judicial pronouncements.
4.13 With regard to the assessment of Shipping Bill, it is submitted that the applicant has already explained above that the scrutiny is not carried out by the applicant. The detailed work of processing of the subject rebate has been in Circular dated 30-5-1995 (Annexure A/8 refer).
4.14 The applicant has not committed any misconduct. In this regard, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of M/s. Hindustan Steel v/s State of Orissa reported at 1978 (20) ELT (J-
159) (SC) wherein, it has held that:
"Penalty can be imposed only if the action was in deliberate defiance of law or conduct was contumacious or dishonest in conscious disregard of its obligation. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose 21 OA No.330 of 2017 penalty, when there is a technical or venial breach of the provisions of the Act."
4.15 It is further submitted that there are no charges to the effect that the applications were incomplete, not filed in proper form, that the files were not sent for post audit, the Form "C" were not sent to the designated Authority, that the rebate/cheque registers (03 in Nos) were not maintained, that the undue advantage was extended with some motive by the applicant.
4.16 It is also submitted that in this particular scam the exporters, forged the rubber stamp of the Custom offices, also they forged the signature of the Custom officers. As they intended to claim the Rebate at Divisional level, therefore, they did not try or attempt to forge the signature and stamp of Excise Officer. At the material time, there was no physical verification of the Shipping bills from the port of Export. The same was made implemented/operative from 15.07.2004 onwards (Annexure A/16 refer), as per orders issued, and the files in question were prior to 30.11.2003.
4.17 It is further submitted that in case of fraud and forgery, there are provisions of recovery of excise duty and erroneous refund under Section 11 of the Custom and Excise Act, 1944, invoking extended period of five years. In all the cases offence case was booked both at Divisional level 22 OA No.330 of 2017 as well conscious disregard of its obligation. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act.
4.18 In support of the claim of the applicant, reliance has been placed by the learned counsel on the following decisions:-
(i) Hon'ble Supreme Court in decision dated 16.08.2002, in the case of Appeal (civil) 5055 of 2002 filed by Sher Bahadur Vs. UOI & Ors, held that "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him.
Evidence, however, voluminous it maybe, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is not evidence in law. Though the Departmental proceedings are based on preponderance of probabilities it does not give liberty of assumptions and presumptions to the disciplinary authority."
23 OA No.330 of 2017(ii) The same contention is repatriated again by Delhi High Court in Dilip Kumar Rabidas Vs. Union of India and Others - 2/2205(HC Delhi)
- decided on 18.06.2004 (Swami News February- 2005) that "Mere negligence does not constitute misconduct and no charge - memo can be issued in the absence of misconduct."
(iii) The Supreme Court in Raminder Duggal Vs. Kendriya Vidyalaya Sangathan and another -6/2005 - decided on 01.10.2004 held that "Lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post could not themselves constitute misconduct. Government action must be based on utmost good faith, belief and ought to be supported with reason."
(iv) The Hon'ble Supreme Court in the case of State of Punjab and other Vs. Ram Singh, Ex. Constable (AIR 1992 SC 288) in Para 4 observed as follows:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus gression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behaviors, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
4.19 It is further submitted that the applicant while functioning as Divisional Inspector had executed the functions in good faith and there was no defiance of law. As such, for duties executed 24 OA No.330 of 2017 and performed on good faith and reasonable belief, cannot be penalized. In this regard, applicant placed reliance on the following judgments:
1. M/s Hindustan Steel Vs State of Orissa {1978(2) ELT (J-159)(SC)};
2. In Govinda Menon Vs UOI {AIR 1967 SC 12/4};
3. Dilip Kumar Rabidas Vs UOI &Ors (2/2205 Hon'ble High Court of Delhi;
4. UOI Vs J. Ahmed (AIR 1979 SC 1022);
4.20 It is reiterated that all the files in divisional office were initially handled by Tax Assistant and Divisional Superintendent. The subjected files were dealt by the applicant only after receipt of Range offices report accompanied by a check list, prescribed under Circular No.23/88 issued by the CBEC. There are only 03 basic requirements for availing Rebate claim of duty borne on goods exported and rest all the requirements are of technical nature i.e. (1) The goods should have been exported.
(2) The duty on the said goods should have been discharged.
(3) The rebate claim should not be hit by time bar. The answer to these aspects/requirement 25 OA No.330 of 2017 were reported as "yes" by the Range officer. At this stage of handling files the only job left with Divisional Inspector was to see the report of the Range officer. That is processing of file in view of Range Officers report and in case of adverse report preparation of Show Cause Notice, Sending of files for post Audit after sanction, and sending of form "C" to respective CAO/ PAO. There was no duty prescribed under Central Excise Act, 1944, Rules framed there under, Circular and Notification issued by CBEC that the divisional Inspector will scrutinize and verify the Rebate Claim before sanction. Therefore, the charge sheet and order issued by the Commissioner needs to be set aside keeping in view the above submissions.
4.21 It is also submitted that there were no lapses in part of officer as an Inspector of Divisional office, the said fact is supported by the amount of recovery made in these fraudulent export cases. The recovery particulars are as below:
1. M/s Biyani Impex - Amount involved Rs. 61,621/-
Amount recovered along with interest mentioned and forthcoming from O I A No. RKA/514- 515/SRT-I/08 dated 23.07.08.
2. M/s Alka fashion:- Amount involved Rs.
17,79,720/-Amount recovered Rs. 21,80,090 along with interest of Rs.5,91,716/- and penalty of Rs. 50,000/- mentioned and forthcoming from Settlement Commission Order No.51/Misc/ ORDER/CEX/KNA/2010 dated 27.07.2010. In pursuant to final order No. 21/Final order No. 21/ Final order/ CEX/KNA/2009 dated 26.03.2009.
26 OA No.330 of 20173. M/s Jhanwar International:- Rs. 19,95,669 /-; In this case investigation revealed mere paper transactions between the manufacturer and exporter.
4. There were no manufacturing of goods by M/s Zenith Dyg & Printing Mills, M/s Sheela dyeing & Pig. Mill and M/s Archana Dyeing & Printing Mills. These Processors in total paid Rs. 19,83,350/- by TR-6 Challan and Rs. 2,47,364/- by proper and Genuine CENVAT Credit. Details of which are as per attached sheet.
5. M/s. T.G. International:- Amount Involved Rs.
31,58,605/-. In this case investigation revealed mere paper transactions between the manufacturer and exporter. There were no manufacturing of goods by. It is forthcoming from the Show Cause Notice issued to the exporter that following recoveries were effected in the present case. Para 75.1(c) of the Show Cause Notice sates that an Amount of Rs. 3,58,085/- paid by processor. Para 75.2(c) of the Show Cause Notice sates that an Amount of Rs. 90,246/- and interest of Rs. 28,684/- paid by processor. Para 48 of the Show Cause Notice sates that an Amount of Rs. 3,00,000/- paid by Rule 12B manufacturer. Para 45 of the Show Cause Notice sates that an Amount of Rs. 3,00,000/- paid by Processor. Para 38 of the Show Cause Notice sates that an Amount of Rs.1,39,947/- paid by Processor.
6. M/s Manohar Processor a manufacturing unit in this case paid an amount of Rs. 3,59,094/- and an amount of Rs.2,89,941/- towards interest mentioned and forthcoming from O I A No. RKA/143-144/SRT-1/2010 dated 24.02.2010 (Para-1).
7. M/s Kashi Silk Mills a manufacturing unit in this case paid an amount of Rs. 9,12,240/-/- mentioned and forthcoming from No/153/ADJ/ JC-VKS/OA/08-09 dated 30.22.2008 (Para-14.1).
8. M/s Subham Textile:- Para-36 of the Show Cause Notice states total amount involved is Rs. 5,73, 158/-, It is stated that 01 Lacs will be paid every Month.
On the strength of above recoveries, it is submitted that as amount involved in Charge 27 OA No.330 of 2017 Memorandum had already been recovered under extended period of five years as when an assessee commits fraud etc., there are provisions for recovery under Sec-11 of the Central Excise Act, 1944.
4.22 It is submitted that there is no collusion, conspiracy, connivance or any monetary motive of the officer than no charges sustain against the officer while performing an official duty.
4.23 Lastly, it is submitted that as there was neither any evidence brought out by the department against the applicant nor there had been any negligence on the part of the applicant during the course of processing of rebate claim, the instant OA deserves to be allowed by this Tribunal
5. Per contra, although factual aspect of the matter as recorded above has not been disputed by the learned counsel for the respondents, however, learned counsel has mainly argued that:
5.1 It is not disputed that the applicant is an Inspector of Central Excise, Division -V of Surat I Commissionerate and while functioning in the said Charge, the applicant failed in his Primary duties to scrutinize rebate claims before putting the same for sanction and had processed 24 fraudulent rebate claims based on forged export documents involving Rs.69.9 lakhs, in a routine 28 OA No.330 of 2017 manner and out of turn even though the documents prima facie revealed gross anomalies. In such way, the applicant has committed gross misconduct and negligence in discharge of his duties and thus failed to perform work with utmost integrity, devotion to duty and conduct which is unbecoming of a government servant in contravention of provisions of Rule 3(1) (i) (ii) (iii) of CCS (Conduct) Rules, 1964.
5.2 It is further submitted that in above circumstances, the respondents had issued charge Memorandum dated 12.3.2008 to the applicant after getting report about serious misconduct of the applicant. Reply to the said charge memorandum was filed by the applicant on 4.4.2008 and on his denial of charges, the Inquiry Officer and Presenting Officers were appointed and thereafter departmental Inquiry was held against the applicant. It is submitted that ample opportunity of being heard was given to the applicant to defend his case against the charges levelled against him.
5.3 After completion of inquiry, the inquiry officer submitted the inquiry report dated 28.3.2013 and came to conclusion that all the charges levelled against the applicant were not proved.
Thereafter on going through the Inquiry Report dated 28.3.2013, all related documents and 29 OA No.330 of 2017 records of the case, the Disciplinary Authority issued Memorandum of Disagreement dated 31.1.2014 and call upon the applicant to file his defence representation, if he wanted to do so. But the applicant failed to file his defence submission to the Disciplinary Authority. The applicant submitted his representation on 13.11.2014 defending his case against the 2nd Stage Advice and disagreement Memorandum.
5.4 It is also submitted that the disciplinary authority has passed an Order in Original dated 20.1.2015 after considering all factual as well as legal aspects of the case along with charge memorandum, replies of the applicant and other documents on record and found the applicant was guilty of the charges levelled against him as per charge memorandum and imposed the penalty of reduction to a lower stage in current time scale of pay of the applicant by three stage from Rs.19180/- + grade pay of Rs.4600/- to Rs.l7140/- + grade pay of Rs.4600/- in time scale of pay of Rs.9,300-34,800 + Rs.4,600/-(Grade Pay) for a period of one year with effect from 1.2.2015 without cumulative effect.
5.5 It is further submitted that being aggrieved and dissatisfied with the said penalty order of DA, the applicant had preferred appeal before the appellant authority and the appellant authority 30 OA No.330 of 2017 by upholding the findings of the Disciplinary authority, by order dated 30.7.2015 was pleased to reduce the punishment of the applicant by 2 stage for the period of six months and further directed that the applicant will not earn increments of pay during the period of such reduction and on expiry of period of one year, the reduction will not have the effect of postponing future increments of pay.
5.6 It is also submitted that being aggrieved and dissatisfied with the order dated 30.7.2015 of the Appellant Authority, the applicant had preferred Revision Petition before the President of India and the President of India was pleased to confirm the order of Appellant Authority by his Order dated 24.5.2016.
5.7 It is further submitted that from the aforesaid, it is evidently clear that while conducting the departmental inquiry in the matter, the provisions of Rule 15 of the CCS (CCA) Rules, 1965 have been very much complied with by the respondents. The charge Memorandum is neither vague nor unclear. Rather the departmental proceeding initiated against the applicant was legal and proper which was held in compliance of the principles of natural justice and the penalty was imposed on the applicant after following due procedure under relevant rules and there is no lacuna in following the 31 OA No.330 of 2017 procedure and furthermore, the penalty is not harsh in nature and. Therefore. the orders impugned in this case are just, proper and legal and not required to be set aside.
5.8 It is further submitted that so far as applicant's contention that the Hon'ble Commissioner did not take cognizance of the fact that the duties and functions of each formation in respect of refund/rebate has been specified and for officers of the rank of Inspector and Superintendent of Divisional level are concerned, the duties and functions have been specified in Circular dated 30.5.1995, which is prevalent.
Our attention has been drawn to paras 2b, 2c and 2e of the said circular dated 30.5.1995, which provide specific duties to be performed by Inspector while dealing refund/rebate but the same had not been carried out by the applicant while dealing with the aforementioned rebate claims. The directions issued by the board thus falsify the contention of the applicant that he has simply only put the refund/rebate claim to the superior and to DC for order without recommending it for sanction/reject. In such way, the applicant has committed gross criminal misconduct and negligence while discharging his duties and thus failed to perform work with utmost integrity, devotion to 32 OA No.330 of 2017 duty and conduct which is unbecoming of a Government servant in contravention of provisions of Rule 3(1) (i), (ii),(iii) of CCS (Conduct) Rules, 1964 and hence, contentions are not sustain in eyes of law.
5.9 Learned counsel has argued that the applicant relied on Board circulars dated 4.4.1988 and dated 24.12.2008. However, from a plain reading of the said circulars, it is clearly transpired that the rebate claims are required to be scrutinize at divisional level. The said circulars do not provide anything that Inspector is not required to scrutinize refund claim. The applicant stated that the Range Officers who are required to scrutinize the documents prescribed but from the circular date 4.4.1988, it is very clear that different tasks are assigned to each proper officer. It also provides for check to be carried out by Divisional Assistant Collector (Now Assistant Commissioner). At Division Office each officer is entrusted work that is to be performed by him. Therefore, one who has been entrusted the work related to refund is supposed to carry out check as provided in the circular dated 4.4.1988. Therefore, the contention of the applicant is not tenable in the eyes of law. Further the Tax Assistant and Superintendent, who carried out preliminary checks, thus in view of above circular too, the 33 OA No.330 of 2017 applicant failed to discharge duties, which he was required to perform.
5.10 Learned counsel further argued that it is admitted by the applicant that he has received the files at his table after receipt of range reports and he has left with nothing to do. Such statement by the applicant is nothing but shows his irresponsible approach towards the work assigned to him despite the fact that certain checks are to be carried out at Divisional level as provided in the said circular relied by the applicant.
5.11 Learned counsel has argued that the contention of the applicant that the scrutiny and verification of rebate claims were vested upon Range Officer and A.C./D.C., if the A.C/D.C. alone has to do this work by himself is baseless and if such is the position, there would be no need to have subordinate staff, who as per duty are assigned to handle rebate work. Further contention of the applicant that he had not even made recommendation for sanction, as the same is being discretionary power of Asst. Commissioner/Dy. Commissioner, the same itself proves how the applicant shrugged off his responsibilities.
5.12 Learned counsel has argued that the applicant failed to notice that when the shipping bills 34 OA No.330 of 2017 were filed at CFS Mulund, how there will be a seal of Customs house, Nhava Sheva. Had the Officer been carried out the work of scrutiny/Checks in regular course, he would have noticed the discrepancies viz. signatures of the Officers, abnormality in customs seals etc. Therefore, by seeking information under RTI and bringing on record that there were no such instructions issued by the Department is nothing but to escape from the responsibility of scrutiny/check of refund/rebate claims.
5.13 It is also submitted that reliance placed on the judgment of the Hon'ble Supreme Court in Shreemal Silk Mills vs. CCE (supra) as well as in Sher Bahadur (supra) and of the Hon'ble High Court of Delhi in Dilip Kumar Rabids (supra) are not applicable in the present case as the instant case is a proven case of fraudulent rebate case.
5.14 Learned counsel has further argued that from the pleadings of the OA, it is clear that applicant has himself admitted that the scrutiny is not carried out by him and relied upon the Board circular dated 30.5.1995. However, the said circular specifically provides that immediately on receipt of refund claim, the refund claim is to be scrutinized by the officer not below the rank of Inspector.
35 OA No.330 of 20175.15 Learned counsel has also argued that all the authorities, i.e., Disciplinary, Appellate and Revisionary Authorities have passed detailed and reasoned orders, as they have dealt in detail the submissions of the applicant, which were not found to be tenable and arrived at a logical finding before imposing the punishment upon the applicant. As such it is incorrect on the part of the applicant to say that order passed by the disciplinary authority is based on assumption and presumption.
5.16 It is further submitted that it is undisputed fact that the refund claims processed by the applicant were forged one based on forged export documents involving Rs.69.9 lakhs Govt. exchequer.
5.17 Learned counsel has further submitted that this case cannot be said to be a case of 'no evidence' and while exercising the power of judicial review, the Court and Tribunal are required to confine the same to the decision making process and not as that of an Appellate Authority and once evidence has been accepted by the departmental authority, the Tribunal or High Court in exercise of power of judicial review cannot interfere with the findings of facts recorded by re-appreciating evidence as if courts are Appellate Authority.
36 OA No.330 of 2017In support to the above submissions, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of State of Karnataka vs. N. Gangaraj, reported in 2020 (O) AIJET-SC 65777.
In view of the above facts and circumstances of the case, learned counsel has submitted that the prayers sought by the applicant in this OA are totally misconceived and not tenable in the eyes of law and accordingly, the present OA deserves to be dismissed with cost.
6. In rejoinder, besides reiterating the contentions and refuting the contentions of the learned counsel for the respondents, learned counsel for the applicant has also placed reliance on the judgment of the Hon'ble Supreme in the case of Union of India vs. Parma Nanda reported in (1989) 2 SCC 177, and submitted that Tribunal has ordinarily no power to interfere with punishment awarded by competent authority in departmental proceedings on ground of the penalty being excessive or disproportionate to the misconduct proved, if the punishment is based on evidence and is not arbitrary, mala fide or perverse but Tribunal can interfere with the apparently unreasonable punishment where it is imposed on the basis of conviction by criminal court dispensing with departmental enquiry under second proviso (a) to Article 311 (2), Article 14 and Article 136 of the Constitution of India.
37 OA No.330 of 20176.1 Learned counsel for the applicant has also place on reliance of certain orders in one of which warning had been issued by the respondents in which the allegations against the CO was the same as in the instant case and in another case the respondents had dropped the charges of similar nature levelled against the CO (Superintendent) on the ground that there was nothing to prove the imputation of charges against the CO. However, in the case of the applicant, the Disciplinary Authority has imposed the punishment of reduction to a lower stage in the current time scale of pay by three (03) stages from the present pay of Rs.19,180/- (Basic Pay) + Rs.4600/- (Grade Pay) to Rs.17,140/- (Basic Pay) + Rs.4600/- (Grade Pay) in the time scale of pay of Rs.9,300-34,800/- + Rs.4600/- (Grade Pay for a period one (01) year with effect from 01.02.2016, which punishment was keeping in view the fact that there was no allegation of any undue monetary benefit having been accrued to the applicant, the Appellate Authority instead of quashing the same had modified and reduced the same by two stages for a period of six months. The Revisionary Authority had mechanically rejected the revision petition of the applicant.
7. We have heard learned counsel for the parties and carefully perused the pleadings of the case as well as the judgments relied upon by the learned counsel for the parties.
8. It is settled principle of law that in departmental proceedings, the Disciplinary Authority is the sole judge of facts. Once findings of fact, based on appreciation of 38 OA No.330 of 2017 evidence are recorded by the Disciplinary Authority & Appellate Authority, normally the Court/Tribunal may not interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court/Tribunal, since the High Court/Tribunal does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review. The Tribunal cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities.
8.1 In this regard, it is profitable to mention that by referring catena of judgments on the point of scope of judicial review by the Courts/Tribunals, the Three Judges Bench of the Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80] wherein it has been held as under:
"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court/tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR 39 OA No.330 of 2017 p. 728 (AIR p. 369, para 20) that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
In another case in the case of Union of India vs. P. Gunasekaran reported in (2015) 2 SCC 610, the Hon'ble Supreme Court held that while re-appreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings as under:-
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of
punishment unless it shocks its
conscience."
In another judgment rendered by the Three Judge Bench of the Hon'ble Supreme Court in the case of SBI vs. Ajay Kumar Srivastava, reported in (2021) 2 SCC 612: (2021) 1 SCC (L&S) 457, by referring the law laid down in B.C. Chaturvedi (supra) and catena of other judgments, the Hon'ble Apex Court held as under:-40 OA No.330 of 2017
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority............"
23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-Judge Bench of this Court in Pravin Kumar v. Union of India [Pravin Kumar v. Union of India, (2020) 9 SCC 471 :
(2021) 1 SCC (L&S) 103] .
24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
41 OA No.330 of 201725. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the 42 OA No.330 of 2017 departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
Further, the Hon'ble Apex Court in the State of Karnataka & Anr. vs. Umesh (2022) 6 SCC 563: (2022) 2 SCC (L&S) 321, emphasised about the scope of judicial review by the Courts/Tribunal in the matter of disciplinary/departmental inquiry and held that:-
"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re- appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and (iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct."
9. By keeping in mind the aforesaid dicta laid down by the Hon'ble Apex Court and considering the facts and circumstances of the present case as discussed hereinabove, it is required to be noted that it is not correct on the part of the applicant that there is no evidence in 43 OA No.330 of 2017 support of the allegations levelled against him. It is noticed that the Disciplinary Authority while passing the aforesaid order after discussing the evidence surface during the inquiry and taking into consideration the same held that the above noted charges levelled against the applicant are established based on the evidence. Therefore, in the light of the law also settled by the Hon'ble Supreme Court in the case of State of Karnataka vs. N. Gangaraj, reported in (2020) (3) SCC that discrepancies in evidence will not make it a case of no evidence and, therefore, interference in findings on ground of discrepancies in evidence of Department not called for. Once evidence has been accepted by departmental authorities, Tribunal or High Court in exercise of power of judicial review cannot interfere with findings of facts recorded by re-appreciating evidence as if Courts are Appellate Authority, as well as on the point of violation of principles of natural justice, in the absence of it suffice to state that we do not find any irregularities in decision making process while conducting the departmental proceeding in the instant case as the applicant has not been able to make out any case on this account.
10. The reliance has been placed by both the parties on Circular dated 30.5.1995 (Annexure A/8 refer), the clause 2(b) of the same specifically provides that 'immediately on receipt of an application, the same must be scrutinised by an officer not below the rank of an Inspector for its completeness'. Further clause 2 (c) provides that 'Preliminary scrutiny should be carried 44 OA No.330 of 2017 out with regard to completeness of the information in the proforma already prescribed, verification of supporting documents to substantiate the refund claim and to evidence payment of duty.' and clause 2
(e) provides that 'Collectors should direct the Division Assistant Collectors to designate an officer by name who will carry out the initial verification and issue the acknowledgement thereof.'
11. We find that applicant himself admitted that he has not done any scrutiny of such kind of refund claim and had the same been carried out by the applicant, such fraud could not have been committed and loss of revenue had been avoided as rightly contended by the respondents. Although the applicant had submitted that the amount involved in Charge Memorandum had already been recovered under extended period of five years as and when an assessee commits fraud etc., in view of provisions for recovery under Sec-11 of the Central Excise Act, 1944, however, the same does not absolve the applicant from the failure to discharge his assigned duties.
11.1 We have also carefully perused the orders passed by the Disciplinary, Appellate and Revisionary Authorities and find that the same are reasoned orders. Rather it is apt to mention that Appellate Authority although upheld the findings of the Disciplinary Authority, however, had reduced the punishment so awarded by the Disciplinary Authority keeping in view that there was no allegation of any undue monetary benefit having been accrued to the applicant. The punishment modified or reduced by the 45 OA No.330 of 2017 Appellate Authority cannot be said to be disproportionate to the gravity of misconduct levelled against the applicant. Therefore, we do not find any illegality and irregularities in the action of the respondents.
11.2 The judgments relied upon by the applicant as noted above are not relevant to the facts and circumstances of the case. So far as reliance placed on the orders passed in other employees is concerned, the same cannot be a ground to claim parity as the same have been passed by the Disciplinary Authority after considering the facts and circumstances of the said case.
12. In the result, for the foregoing reasons, we do not find any illegality and irregularities on the stand of the respondents while passing the aforesaid orders and as such we are of the considered view that there is no merit in the present case and the same is dismissed accordingly.
11. There shall be no order as to costs.
(Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
/ravi/