Central Administrative Tribunal - Delhi
Jatinder Singh Saini vs Uoi & Ors. Through on 19 February, 2014
CENTRAL ADMINSITRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI OA 4413/2012 This the 19th day of February, 2014 Honble Mr. G.George Paracken, Member (J) Honble Mr. P.K.Basu, Member (A) Jatinder Singh Saini, S/o Shri Didar Singh, R/o O-33, New Mahavir Nagar New Delhi 110 018 . Applicant (By Advocate:Shri M.K.Bhardwaj) VERSUS UOI & Ors. through 1. Union of India Through Secretary (Revenue) Ministry of Finance, North Block New Delhi. 2. Central Board of Excise and Customs (CBEC) Department of Revenu Ministry of Finance Govt. of India, 9th Floor HUDCO Vishala Building Bhikaji Cama Place New Delhi 110 066. 3. The Commissioner of Customs Air Cargo Export, New Customs House New Delhi . Respondents. (By Advocate: Shri Amit Anand) ORDER (ORAL)
By Honble Shri G.George Paracken, The applicant was proceeded against under Rule 14 of CCS (CCA) Rules, 1965. The statement of imputations of misconduct and misbehaviour in respect of which inquiry was proposed to be held was as under :-
Statement of Articles of charge framed against Mr. J.S.Saini, Superintendent.
Article-I That, Shri J.S.Saini, Superintendent while posted at ICD, Tughlakabad, New Delhi failed to carry out proper examination of the imported goods comprising of find quality paper of more than 70 GSM which attracted basic customs duty of 10%, which were mis-declared as Newsprint/LWC paper, having basic customs duty of 5%, thus caused the alleged revenue loss and thus, he showed lack of devotion to duty. In addition, he also failed to take reasonable steps to ensure devotion to duty of the Government servants under his control and authority and thereby he contravened the provisions of Rule 3(1)(ii) and 3(2)(i) of the Central Civil Services (Conduct) Rules, 1964 and rendered himself liable for action under Rule 14 of the Central Civil Services (CCA) Rules, 1965.
Article-II That, an element of alleged payment of monetary consideration to Shri J.S.Saini, Superintendent came to light when a diary of Shri Sanjay Sharma, an employee of M/s R.K. International, Customs House Agent, was seized by the DRI contained the name of Shri J.S.Saini, Superintendent as the recipients of cash payment made by Shri Sanjay Sharma in lieu of clearing of mis-declared consignments carrying fine quality papers of more than 70 GSM in guise of Newsprint/LWC paper. Therefore, Shri J.S.Saini, Inspector showed lack of integrity, lack of devotion to duty and conduct unbecoming of a government servant and thereby contravened the provisions of Rules 3(1)(i), 3 (1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 and rendered himself liable for action under Rule 14 of the Central Civil Services (CCA) Rules, 1965.
2. The contention of the learned counsel for applicant is that his colleague, namely, Ms. Ritu Choudhary has also been given the same charges which are as under :-
Statement of Articles of charge framed against Smt. Ritu Choudhary, Inspector.
Article-I That, Smt. Ritu Choudhary, Inspector failed to carry out proper examination of the imported goods comprising of find quality paper of more than 70 GSM which attracted basic customs duty of 10%, which were mis-declared as Newsprint/LWC paper, having basic customs duty of 5%, causing the alleged revenue loss and thus, she showed lack of devotion to duty, thereby contravening the provisions of Rule 3(1)(ii) of the Central Civil Services (Conduct) Rules, 1964 and she rendered herself liable for action under Rule 14 of the Central Civil Services (CCA) Rules, 1965.
Article-II That, an element of alleged payment of monetary consideration to Smt. Ritu Choudhary, Inspector came to light when a diary of Shri Sanjay Sharma, an employee of M/s R.K. International, Customs House Agent, was seized by the DRI contained the name of Smt. Ritu Choudhary, Inspector as the recipient of cash payment made by Shri Sanjay Sharma in lieu of clearing of mis-declared consignments carrying find quality papers of more than 70 GSM in guise of Newsprint/LWC paper. Therefore, Smt. Ritu Choudhary, Inspector showed lack of integrity, lack of devotion to duty and conduct unbecoming of a government servant and thereby contravened the provisions of Rules 3(1)(i), 3 (1)(iii) of the Central Civil Services (Conduct) Rules, 1964 and rendered himself liable for action under Rule 14 of the Central Civil Services (CCA) Rules, 1965.
Article-III That, Smt. Ritu Choudhary, Inspector used the user-ID of Shri R.C.Bhardwaj, Inspector while examining and clearing one consignment of newsprint/LWC paper. Smt. Ritu Choudhary, Inspector used the computer terminal of another officer using his identity/user ID and password. Thus, she showed lack of integrity, lack of devotion to duty and conduct unbecoming of a government servant and thereby contravened the provisions of Rule 3 (1)(i), 3 (1)(ii) and 3(1) (iii) of the Central Civil Services (Conduct) Rules, 1964 and rendered herself liable for action under Rule 14 of the Central Civil Services (CCA) Rules, 1965.
3. In the case of Ms. Ritu Choudhary she challenged the aforesaid charge before the Honble Tribunal in OA No.1011/2013 and the same was allowed on 06.01.2014. The operative part of the same is as under:-
19. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri Rajeev Kumar. As rightly argued by the learned counsel for the Respondents that the Courts and Tribunals should not generally interfere with the disciplinary proceedings at the interlocutory stage. The High Court and Supreme Court have also held in catena of cases that Courts/Tribunals should not generally set aside the departmental enquiry and quash the charges on the ground of delay in initiation of disciplinary proceedings. As far as the question of delay in initiation of departmental proceeding, the Apex Court in Appala Swamys case (supra) held that the delinquent employee could raise it before the Enquiry Officer. However, at the same time the Apex Court has also held that the facts and circumstances of each case in question have to be examined by the Courts/Tribunals. In Meera Rawthers case (supra), the Apex Court has also held that wherever delay is put forward as a ground of quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances.
20. We, in the light of above settled legal position, have considered the facts and circumstances of the case. Admittedly, the Articles of Charges leveled against the Applicant relate to the period from 01.05.2004 to 31.12.2004. The charge was that the Applicant failed to carry out proper examination of the imported goods comprising of fine quality paper of more than 70 GSM which attracted basic customs duty of 10%, which was misdeclared as Newsprint/LWC paper, having basic customs duty of 5%, causing the alleged revenue loss. The Applicant has sought the documents to give explanation to the aforesaid memorandum of charges leveled against her. However, the Respondents have stated that none of those original documents are available. In our considered view, unless the original documents or in its absence, the authenticated photocopies are made available by the Respondents for inspection by the Charged Officer, he will not be in a position to properly defend his case. In a disciplinary proceedings, supplying the necessary documents is an essential part of the process and only on their inspection to find out its authenticity, the charged officer will have reasonable opportunity to defend his case. Therefore, there is no denying the fact that the delay in initiating the disciplinary proceedings against the Applicant has caused serious prejudice to the Applicant. There is also no proper explanation forthcoming from the Respondents as to why there was such inordinate delay in initiating the disciplinary proceedings. Another important aspect of the matter in this case is that the Disciplinary Authority is relying upon 10 documents including copies of 10 Bills of Entry, diary of Shri Sanjay Sharma seized by DRI, statement given by Shri Sanjay Sharma on 28.12.2005 and 29.12.2005, statement dated 29.12.2005 given by one Shri Utpal Gupta recoded before the DRI etc. However, not a single witness has been listed to prove those charges. Naturally, when the disciplinary proceedings are initiated after many years from the occurrence of the alleged incidents, the witness, if any, of that time may not become available later. It is a well settled law and one of the basic principles of natural justice is that the delinquent employee should have the reasonable opportunity to cross examine the prosecution witnesses. It is only after due cross examination, the Enquiry Officer himself can come to the conclusion whether the charges have been proved or not. Therefore, in the absence of any witnesses, if the Enquiry Officer comes to the conclusion that the charges have been proved, such findings can only be termed as perverse report and the same cannot be accepted. In this regard, judgment of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank & Others 2009 (2) SCC 570 is relevant. It has been held by the Apex Court that documentary evidence are required to be proved not by mere production of the documents before the Inquiry Officer but it has to be proved by examining the witnesses. The relevant part of the said judgment reads 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. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
21. In the above facts and circumstances of the case, we are of the considered view that at this belated stage, particularly in the absence of relevant documents and the witnesses, if any enquiry is held, the Applicant will be greatly prejudiced and it will amount to denial of justice to her. We, therefore, consider that it will be a futile exercise on the part of the Enquiry Officer to conduct the enquiry as proposed in the impugned memorandum. Accordingly, we allow this OA and quash and set aside the impugned memorandum dated 04.12.2012. Consequently, the Applicant shall not be visited by any adverse action on the part of the Respondents or she shall not be denied any benefit which she was otherwise entitled to, due to the issuance and pendency of the aforesaid Memorandum. The Respondents shall comply with the aforesaid directions by passing an appropriate order within a period of 2 months from the date of receipt of a copy of this order.
22. There shall be no order as to costs.
4. The respondents had filed their reply opposing the contentions of the applicant in this OA.
5. We have heard the submissions made by the learned counsel for the parties. We have also gone through the relevant documents on record.
6. In our considered view, this is squarely covered by the earlier Order of this Tribunal in the case of Ritu Chaudhary (supra). Accordingly this OA is also disposed of in terms of the directions given in the case of Ms. Ritu Chaudhary (supra).
There shall be no order as to costs.
(P.K.BASU) (G.GEORGE PARACKEN) MEMBER (A) MEMBER (J) uma