Central Administrative Tribunal - Delhi
Shri C.M.P. Sinha vs The Union Of India on 13 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1804/2012 Reserved On:09.05.2014 Pronounced on:13.05.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Shri C.M.P. Sinha Age 44 years Inspector-Adudication, Service Tax Commissionerate, New Delhi. Applicant By Advocate: Shri Sachin Chauhan. Versus 1. The Union of India Through the Secretary (Revenue), Ministry of Finance, Department of Revnenue, North Block, New Delhi. 2. The Commissioner, Service Tax, O/o Commissioner of Service Tax, 17-B, I.A.E.A. House, M.G. Marg, New Delhi. 3. The Deputy Commissioner, Import Shed, Office of the Commissioner of Customs, Inland Container Depot, Tughlakabad, New Delhi. 4. The Additional Commissioner (Vigilance), North Zonal Unit, Directorate of Vigilance, C.R. Building, I.P. Estate, New Delhi. Respondents By Advocate: Shri Rajiv Kumar. ORDER
Honble Mr. G. George Paracken, Member (J) In this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 the Applicant has challenged the Annexure A-I Memorandum No.C.VIII(I&V)26/06/ST/12 dated 12.04.2012 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. The substance of imputation of misconduct in respect of which enquiry was proposed to be held as set out in the statement of Articles of Charge reads as under:-
ARTICLE-I THAT, Shri C.M.P. Sinha, Inspector while being posted and functioning as Inspector of Customs, ICD, Tughlakabad during the year 2007 has failed to maintain absolute devotion to duty and acted in a manner which is unbecoming of a government servant in as much as Shri C.M.P. Sinha, Inspector failed in properly examining the goods as per orders and gave an incorrect examination report, thereby, failed to maintain devotion to duty and acted in a manner which is unbecoming of a government servant, thereby contravening the provisions of Rule 3 (1) (ii) & (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE-II THAT, Shri C.M. P. Sinha, Inspector while being posted and functioning as Inspector of Customs, ICD, Tughlakabad during the year 2007 has failed to maintain absolute devotion to duty and acted in a manner which is unbecoming of a government servant in as much as Shri C.M.P. Sinha, Inspector failed to draw representative samples of the goods imported. Thereby, failed to maintain absolute devotion to duty and acted in a manner which is unbecoming of a government servant, thereby contravening the provisions of Rule 3 (1) (ii) & (iii) of the CCS (Conduct) Rules, 1964.
The aforesaid imputation of misconduct was proposed to be sustained with the following list of documents:-
S.L. Name of document
1. B/E No.596337 dated 21.05.2007
2. B/E No.596338 dated 21.05.2007
3. B/E No.596339 dated 21.05.2007
4. B/E No.596613 dated 22.05.2007
5. B/E No.596614 dated 22.05.2007
6. B/E No.596625 dated 22.05.2007
7. Panchnama dated 01.06.2007 at the godown of M/s Shree Aggarwal Chemicals with annexures.
8. Panchnama dated 08.06.2007 at the godown of M/s Shree Aggarwal Chemicals with annexures.
9. Panchnama dated 11.06.2007 at the godown of M/s Shree Aggarwal Chemicals, 523/1 gali no.3, Vishwas Nagar, Shahadra, Delhi
10. Panchnama dated 31.05.2007 at the examination area of Import Shed
11. Panchnama dated 04.06.2007 at the examination area of Import Shed
12. Panchnama dated 05.06.2007 at the examination area of Import Shed
13. Panchnama dated 06.06.2007 at the examination area of Import Shed
14. Panchnama dated 07.06.2007 at the examination area of Import Shed
15. Statement dated 05.06.2007 of Simi Pramod Aggarwal, proprietor of M/s Shree Aggarwal Chemicals in 9 pages
16. Statement dated 13.06.2007 of Shri Pramod Aggarwal, proprietor of M/s Shree Aggarwal Chemicals in 7 pages
17. Statement dated 19.11.2007 of Shri C.L. Meena, Superintendent, ICD, TKD, Import Shed
18. Statement dated 19.11.2007 of Shri C.M.P. Sinha, Inspector, ICD, TKD, Import Shed
19. Copy of A.0. No.28/2007 dated 19.06.2007
20. Letter C No VIII/ICD/TKD/10/SIIB/30/07 dated 08.06.2007 of AC, SIB, ICD TKD addressed to the Manager Shriram Institute for Industrial Research for testing sample regarding B/E No.596339.
21. Letter C No VIII/ICD/TKD/10/SIIB/10/07 dated 06.06.2007 of AC, SIB, ICD TKD addressed to the Manager Shriram Institute for Industrial Research regarding testing of 2 samples in respect of B/E No.596614 and B/E No.596338.
22. Test Certificate of SIIR no.000050608 w.r.t. B/E No.596337 dated 21.05.2007
23. Test Certificate of SIIR no.000050107 w.r.t. B/E No.596338 dated 21.05.2007
24. Test Certificate of SIIR no.000050606 w.r.t. B/E No.596339 dated 21.05.2007
25. Test Certificate of SIIR no.000050106 w.r.t. B/E No.596614 dated 22.05.2007
26. Test sample report dated 19.07.07 of CIPET, Bhopal in respect of Bill of Entry No.596337 dated 21.05.2007 sought by SIIB
27. Test sample report dated 06.07.07 of CIPET, Bhopal in respect of Bill of Entry No.596338 dated 21.05.2007 sought by SIIB.
28. Test sample report dated 19.07.07 of CIPET, Bhopal in respect of Bill of Entry No.596339 dated 21.05.2007 sought by SIIB.
29. Test sample report dated 19.07.07 of CIPET, Bhopal in respect of Bill of Entry No.596613 dated 22.05.2007 sought by SIIB.
30. Test sample report dated 19.07.07 of CIPET, Bhopal in respect of Bill of Entry No.596614 dated 22.05.2007 sought by SIIB.
31. Test sample report dated 06.07.07 of CIPET, Bhopal in respect of Bill of Entry 596625 dated 22.05.2007 sought by SIIB.
32. Test sample report dated 24.07.07 of CIPET, Bhopal in respect of Bills of Entry Nos.59937/21.05.07, 596338/21.5.07, 596339/21.5.07 and 596613 dated 22.05.07 sought by ICD Shed TKD.
However, according to the said Memorandum, there are no witnesses to sustain those charges.
2. The Applicant has challenged the aforesaid Memorandum on the ground that it is illegal, mala fide, unjustified, unreasonable and without jurisdiction. He has also alleged that the same is in violation of principle of natural justice as no witnesses are there to prove the charge. Further, he has submitted that the aforesaid Articles of Charges are in respect of some imports attended by him as part of his official duties during the course of posting as Inspector in Import Shed, Inland Container Depot, Tughlakabad, New Delhi in the year 2007 and there is inordinate and unexplained delay of more than 5 years in issuing the aforesaid charge sheet. In this regard he has relied upon the judgment of the Apex Court in the case of State of Punjab and Others Vs. Chaman Lal Goyal 1995 SCC (2) 570 whereby the Apex Court quashed the charge sheet on the ground of unexplained delay in initiating the departmental enquiry. The relevant part of the said judgment reads as under:-
10. Now what are the factors against the respondent. That the respondent was never suspended nor was he served with a memo of charges nor even with a questionnaire in that behalf till March 1992 when he was questioned by the secretary to the Home Department and charges served in July 1992. He had suffered no discomfort or inconvenience on account of delay. The charges are very grave. The charges are not only that he was lax in discharge of his duties but that he acceded to every demand of theirs and that in violation of the prison rules, had allowed a number of terrorists to gather in one cell. He is said to be responsible for creating the atmosphere which led to the said attempt. His sympathies towards them are said to be evident from the fact that he accepted a farewell party from them on his transfer from the post of Superintendent of the said jail. In the attempted escape, one prison official lost his life besides two terrorists. The earliest report of the incident - the report of Inspector General of Prisons dated 9/1/1987 - does specifically find the respondent responsible for the incident. It is prima facie evidence against the respondent. In the interest of administration and of justice, it is necessary to find out the truth in the matter. (iii) There is no allegation in the writ petition that any of the witnesses whom the respondent wanted to examine in his defence are since dead or have become unavailable and that the said fact would cause prejudice to his case. Indeed, death or non-availability of terrorists who made the attempt to escape and the repair of the jail may prejudice the case of the government rather than the defence of the respondent. Similarly, the mere fact that some persons who could have been examined as witnesses have retired or have been transferred cannot be said to cause prejudice to the respondent. It is not stated that they have become unavailable. (iv) Pending the writ petition, the enquiry was proceeded with and by the date of the impugned judgment, the government had completed its evidence. Only the defence evidence remained to be adduced whereafter the enquiry officer would have made the report.
He has also stated that the aforesaid inordinate delay has seriously prejudiced his case and he was deprived of an efficacious defence. He has further stated that an enquiry in the very same matter was held by the department in the year 2007 itself and by their own report dated 30.07.2007, he stood exonerated. Therefore, issuing the charge-sheet afresh once again after delay of 5 years smacks mala fide and bias.
3. The learned counsel appearing on behalf of the Applicant Shri Sachin Chauhan has also submitted that there was no misconduct on the part of the Applicant as alleged by the Respondents. At best the Respondents could have alleged that he did not perform his duties well. But non-performance of ones duties cannot be considered as a misconduct. In this regard he has relied upon the judgment of this Tribunal in OA No.220/2006 - G.P. Sewalia Vs. Union of India decided on 27.08.2008. the relevant part of the said judgment reads as under:-
Non-performance of duties, which may have no element of unlawful behaviour, willful in character, improper or wrong behaviour, misdemeanor, misdeed, impropriety or a forbidden act, may some time amount to not carrying out the duties efficiently, but the same cannot be construed to be misconduct.
He has also placed reliance on the judgment of the Apex Court in the case of Union of India and Others Vs. J. Ahmed 1979 (2) SCC 286 wherein it has been held that deficiencies in personal character of personal ability would not constitute misconduct for taking disciplinary proceedings. It was further held that the negligence in performance of duty or inefficiency in discharge of duty are not acts of commission or omission under Rule 4 of the Discipline and Appeal Rules.
4. Shri Sachin Chauhan has also stated that the originals of the relied upon documents are not available with the Respondents. In this regard, the Applicant has also filed MA No.1255/2014 in this OA bringing on record his representation dated 10.09.2012 by which he has informed the Disciplinary Authority that an enquiry cannot be proceeded on the basis of zerox copies of the documents. In this regard he has also invited attention to letter F.No.C-14010/3/2011-Ad.V issued by the Central Board of Excise and Customs that the enquiry proceedings cannot be conducted on the basis of unauthenticated zerox copies only.
5. The Respondents have filed their reply denying the contention of the Applicant. They have stated that the case was investigated by the SIIB, ICD TKD and the Preliminary Inquiry Officer submitted his report on 24.09.2009 and thereafter further full investigations were conducted by DGOV. It is only thereafter the departmental enquiry was conducted in which wrong doings of the Applicant was confirmed. They have also stated that a comprehensive investigation takes time to find out the role of officers. In this case, it was only after the comprehensive investigation was held, the mis-conduct of the Applicant has come to light and it is reflected in Annexure-II of the Charge Sheet. They have also stated that the lapse/misconduct on the part of the officer in conducting proper examination of goods and proper drawl of representative samples have come out clear as a result of investigation. Further, they have stated that the lapse on the part of the Applicant amounts to misconduct and hence the case law quoted by him does not apply in the instant case.
6. We have heard the learned counsel for the Applicant Shri Sachin Chauhan and the learned counsel for the Respondents Shri Rajeev Kumar. It is seen that the Applicant has challenged the impugned Annexure A-1 Memorandum dated 12.04.2012 mainly on the grounds that the Respondents have issued it in violation of the principles of natural justice based on which the prescribed rules have been made. The specific submission of the learned counsel for the Applicant is that the Respondents do not have any witnesses to prove the charge leveled against him and there was unexplained delay and laches in issuing the same. His other contention is that he has already given his explanations to the said charges vide his letter dated 02.07.2007 as well as by his subsequent statement dated 19.11.2007 submitted to the DGOV, NZU, New Delhi. In our considered view, there is merit in the contention of the Applicant that the impugned Memorandum is not sustainable as there are no witnesses to prove the listed documents furnished to him along with the Article of charge. In the absence of any witnesses, if the Inquiry Officer comes to the conclusion that the charges have been proved, such findings can only be termed as perverse and the same cannot be accepted. In terms of sub-rules (3) and (4) of Rule 14 of the CCS (CCA) Rules, 1965, the Disciplinary Authority shall draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charges. The statement of the imputations of misconduct or misbehavior shall also contain a list of documents by which a list of witnesses by whom each articles or charges are proposed to be sustained. The said sub rules are reproduced as under:-
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article or charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
7. The Apex Court in Kuldeep Singh Vs. The Commissioner of Police & Others JT 1998 (8) SC 603 has also held that there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse. Again, in its judgment in Roop Singh Negi V s. Punjab National Bank and Others 2009 (2) SCC 570 the Apex Court held that mere production of documents is not enough but their contents have to be proved by examining the witnesses. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof..
Again the Apex Court in its judgment Modula India v. Kamakshya Singh Deo (1988) 4 SCC 619 held that in a disciplinary proceedings, documents are the tools for the delinquent-employee for cross-examining the witnesses who deposed against him. Further, the Apex Court in its judgment in the case of Hardwari Lal Vs. State of U.P. & Others 1999 (8) SCC 582 held that in a departmental enquiry proceedings examination of the material witnesses is a must.
8. We are, therefore of the considered view that the disciplinary proceedings initiated against the Applicant, vide the impugned Memorandum dated 24.10.2011, is unsustainable on the aforesaid ground of violation of the prescribed rules which are in tune with the principles of natural justice. Accordingly, this OA is allowed and the impugned Memorandum dated 12.04.12 is quashed and set aside with all consequential benefits as admissible under the rules. The Respondents shall also pass appropriate orders in terms of the aforesaid directions, within a period of 2 months from the date of receipt of a copy of this order.
9. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh