Central Administrative Tribunal - Delhi
Rajinder Singh vs Central Excise &Amp; Customs on 18 December, 2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.2362/2016
M.A. No.2170/2017
This the 18th day of December 2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K.N. Shrivastava, Member (A)
Rajinder Singh, aged 41 years
s/o Siri Ram
r/o B 7 G Vijeta Vihar
Sector 13, Rohini
Delhi 110 085
Presently under suspension in the post of
Preventive Officer of Customs, Kolkata
Also at C -117
Customs and Central Excise
Residential Complex, 179, Shanti Pally
Kolkata 700107
..Applicant
(Mr. Avijit Bhattacharjee, Ms. Upma Shrivastava and Mr. Ajay Kumar
Ghosh, Advocates)
Versus
1. Union of India through
the Joint Secretary (Administration)
In-charge of CBEC
Ministry of Finance
Govt. of India
North Block, Central Secretariat
New Delhi
2. The Chairman, CBEC
Ministry of Finance
Govt. of India
North Block, Central Secretariat
New Delhi
3. The Chief Commissioner of Customs (I/C)/
Appellate Authority
15/1 Strand Road, Customs House
Kolkata - 700 001
2
4. Principal Commissioner of Customs
Airport & Administration
Custom House (Disciplinary Authority)
15/1 Strand Road, Customs House
Kolkata - 700 001
..Respondents
(Mr. Rajeev Kumar, Advocate)
O R D E R (ORAL)
Mr. K N Shrivastava:
Through the medium of this O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(a) an order setting aside the order dated 28.04.2016 passed by Shri Brojen Thamar, the Chief Commissioner of Customs (I/C), Kolkata Zone, Appellate Authority, in Order-in-Appeal File No.VIII (8)-253/CC/KOL/CUS/VIG/11 (Pt.);
(b) an order setting aside the order dated 18.5.2016 passed by Shri Brojen Thamar, The Principal Commissioner of Customs (Airport and Administration), the Disciplinary Authority, in F.No.S16 (Comp.)-01/ 2008 Vig. (Pt.) suspending the applicant with retrospective effect after reinstating him in service;
(c) an order setting aside the memorandum dated 16/18.5.2016 issued by Shri Brojen Thamar, the Principal Commissioner of Customs (Airport and Administration), the Disciplinary Authority, in F.No.S16 (Comp.)-01/2008 Vig (Pt.) issuing fresh charges and statements of imputation of misconduct against the applicant."
2. The factual matrix of the case, as noticed from the records, is as under:-
2.1 The applicant participated in the selection for the post of Preventive Officer (under sports quota) in Customs Department conducted by the Central Government in the year October 1999 at Kolkata. He was selected 3 and was issued appointment letter dated 13.01.2009; pursuant to which he joined as Preventive Officer on 15.04.1999.
2.2 One Yogendra Singh, through a petition, alleged that the applicant has secured the appointment by submitting a false provisional degree certificate and final year mark sheet of B.A. Preliminary investigation in the matter was conducted by Special Investigations Unit (SIU) of Customs, in which, prima facie, it was found that the applicant had forged mark sheet/ provisional certificate relating to his B.A. examination in the year 1997 from Chaudhary Charan Singh (CCS) University, Meerut as a private candidate under roll No. A-32606 and enrolment No. M-942370.
2.3 Based on the preliminary investigation report, the applicant was placed under suspension on 26.09.2008 allegedly for impersonating the educational certificates of another person bearing the name Rajendra Singh s/o Sh. Samay Singh, resident of Gram & Post - Thaksa, Janpad, Saharanpur.
2.4 A charge memo was issued to the applicant on 05.06.2009, in which following three articles of charges were leveled:
"Article-1 : That the appellant at the time of his appointment as Direct Recruit Preventive Officer, impersonated the Educational Certificates, viz. Provisional Degree Certificate and final mark sheet of B.A. Examination of the said University, held in 1997 under Roll no. A 32606 and Enrolment No.M 9452370, of another person bearing the name „Rajendra Singh‟, s/o Shri Samay Singh and illegally got his appointment as Direct Recruit Preventive Officer on Sports Quota.
Article-II:- That the appellant, at the time of his appointment as direct recruit Preventive Officer, forged the documents, viz. Provisional Degree Certificate and final mark sheet of B.A. Examination of the said University held in 1997 under Roll No.A 4 32606 and Enrolment No. M. 9452370 and that, on the strength of the said false educational certificates, the appellant established his eligibility and illegally got his appointment as Direct Recruit Preventive Officer on Sports Quota w.e.f. 15/04/1999 when he was actually not qualified for such appointment.
Article-III:- That the appellant, at the time of his appointment in Customs, Kolkata, in 1999, not only violated the prescribed Norms, Rules and Regulations of initial recruitment in service under the Recruitment Rules but also acted in a manner highly unbecoming of a Government Servant thereby contravening the provisions of Rule 3(1)(i), 3 (1)(ii) and 3 (1)(iii) of the CCS (Conduct) Rules‟ 1964."
The charge memo also indicated that inquiry under Rule 14 of CCS (CCA) Rules, 1965 for imposition of major penalty had been contemplated against the applicant.
2.5 The inquiry officer sent a letter dated 09.01.2010 to CCS University seeking clarification in regard to the allegations made against the applicant by the complainant Yogendra Singh. The CCS University, vide Annexure A- 3 letter dated 22.01.2010, informed the inquiry officer as under:-
"To Shri G K Jha Dy. Commissioner of Customs & Inquiry Officer NSCBI Airport Kolkata Sir, With reference to your letter reference C. No.S.16 (comp)- 01/2008 Vig dated 9/1/10, please find herewith are the required details of the candidate as available in the office records.
1. Name of the candidate - Rajendra Singh
2. Father‟s Name - Sri Ram
3. Residential Address - G-7, Vijayeta Vihar Sector 13, Rohini, Delhi-85 09.11.1974 5 The candidate has passed BA final examination with roll No.A32606, enrolment no.9452370 in 1997.
Thanking you, Yours faithfully, Sd/-
Vigilance Officer Ch. Charan Singh University Meerut (U.P.)"
2.6 The inquiry officer made further inquiry from the University vide 20.03.2010, to which the University, vide its Annexure A-4 letter dated 12.04.2010, re-confirmed the information furnished by it vide Annexure A- 3 letter dated 22.01.2010.
2.7 The inquiry officer proceeded with the inquiry in which the applicant participated. Finally, vide his Annexure A-1 report dated 28.06.2010, submitted to the disciplinary authority, the inquiry officer concluded that all the three charges against the applicant stood proved. 2.8 Acting on the inquiry officer‟s report, the disciplinary authority, namely, Commissioner of Customs (Airport & Administration), Custom House, Kolkata, vide his Annexure A-2 order dated 25.07.2011, imposed the penalty of removal from service on the applicant. The order stated that the removal from service shall not be a disqualification of the applicant for future employment under the Government.
2.9 The applicant preferred an appeal dated 12.09.2011 before the departmental appellate authority, namely, Chief Commissioner of Customs, Kolkata, who, vide Annexure A-5 order dated 05.10.2012, set aside the 6 penalty order passed by the disciplinary authority. In its order, the appellate authority had made the following significant observations:-
"...I find that there are many inconsistencies in the subject inquiry report and the DA report also does not clearly and unambiguously account for the gaps or missing links. In other words, the inquiry does not appear to have completely proved the charges and leaves scope for redetermination of the facts on all the above counts, particularly, because of the appellant‟s confident submissions in the appeal and more so, to be certain that no undue penalty of such a grave nature is meted out to the applicant."
2.10 After the remand of the matter by the appellate authority to disciplinary authority, the applicant was reinstated in service vide order dated 31.01.2013 of the Commissioner of Customs (Airport & Administration) Custom House, Kolkata. The operative part of the said order reads as under:-
"I hereby order for reinstatement of Shri Rajinder Singh in service with effect from 25.07.2011 i.e. the date of dismissal from service. However, his suspension as it existed prior to the Order-in- Original dated 25.07.2011 shall under sub-rule (3) of Rule 10 of the CCS (CCA) Rules, 1965 deemed to have continued in force on and from 25.07.2011 and shall remain in force until further orders, subject to review in terms of existing instructions. However, Shri Rajinder Singh should be entitled to subsistence allowance as per his admissibility. In the mean time de-novo proceedings in the case will be initiated with fresh enquiry, for redetermination of the merits of the case."
2.11 Fresh inquiry was conducted by appointing Mr. Anit Jain, Superintendent of Customs (P) & P.O., Custom House, Kolkata. The new inquiry officer, vide his report dated 12.01.2015, concluded that the charges against the applicant are not established. The relevant portion of the inquiry officer‟s report is reproduced below:-
7
"A) Discussion and analysis of the articles of charges about Shri Rajinder Singh, Preventive Officer, C.O. having violated the prescribed norms, rules and regulations of initial recruitment in the service under the Recruitment Rules but also acted in a manner highly unbecoming of a government servant thereby contravened the provisions of Rule 3 (1), 3 (1)(ii) and 3 (1) (iii) of CCS (Conduct) Rules, 1964 is not established as the CCS University, Meeurt forwarded the copy of the application form submitted by Shri Rajinder Singh C.O at the time of his admission in the university with details like the name of the father, his date of birth and the residential address have been found to be the same as in the police verification report conducted by the department at the time of joining which was gathered from the personal file of the charged officer.
Hence it appears that the candidate who had passed out of the CCS University in the year 1997 under roll No. A32606, Enrollment No.M9452370 is Rajinder Singh was appointed and is presently working as Preventive Officer at Kolkata Customs and the documents submitted by him at the time of his initial appointment matches with that of the University records. Hence the charge which is construed as a conduct unbecoming of a government servant under CCS (Conduct) Rules, 1964 and imputations that led to framing of charges are not established framed under Article III of the article of charges." 2.12 The disciplinary authority disagreed with the findings of the inquiry officer and issued a disagreement note, in which, inter alia, it was stated that the reply dated 01.04.2014 received from the Assistant Registrar of CCS University highlighted the name, father‟s name, date of birth and address as per unstamped namankan praman patra dated 08.05.2014; however, it did not match with the details forwarded vide communication dated 13.08.2008 by the Registrar of the CCS University to JC (SIU). 2.13 The applicant replied to the disagreement note vide his letter dated 08.05.2015 controverting the contents of the disagreement note. After considering the reply of the applicant to the disagreement note, the disciplinary authority, namely, Commissioner of Customs (Airport & Administration) Custom House, Kolkata, vide his Annexure A-7 order dated 24.06.2015, re-imposed the penalty of removal from service on the 8 applicant. The order further stated that the removal from service shall not be a disqualification of the applicant for future employment under the Government.
2.14 The applicant filed statutory appeal dated 10.08.2015 (Annexure A-8) before the departmental appellate authority, i.e., Chief Commissioner of Customs, Custom House, Kolkata. The appeal was followed by a reminder dated 04.01.2016. Since the appellate authority was prevaricating over the appeal of the applicant and was delaying in deciding it, the applicant approached this Tribunal by filing O.A. No.775/2016 seeking a direction to the appellate authority to decide his appeal dated 10.08.2015. The Tribunal, vide order dated 24.02.2016, disposed of the said O.A. with the following directions:-
"3. The applicant preferred his appeal dated 10.8.2015 which has not yet been disposed of by the Appellate Authority. The applicant submitted a reminder dated 04.01.2016 to dispose the said appeal early. But no steps having been taken by the respondents so far hence, the present OA. The respondent No.3 being the Chief Commissioner of Customs and Appellate Authority, is directed to decide the appeal filed by the applicant dated 24.06.2015 by passing a reasoned and speaking order within a period of 8 weeks from the date of receipt of a copy of this order."
2.15 The appellate authority, vide its order dated 28.04.2016, disposed of the appeal of the applicant by remanding the matter back to the disciplinary authority to conduct fresh inquiry taking into account all the relevant aspects and documentary evidence produced. This order was passed by Mr. Brojen Thamar, who was holding the charge of Chief Commissioner of Customs (I/C), i.e., appellate authority but his substantive charge was that 9 of Principal Commissioner of Customs (Airport & Administration), Custom House, Kolkata.
2.16 Pursuant to the remand ordered by the appellate authority vide order dated 28.04.2016, which was passed by Mr. Brojen Thamar as In-charge Chief Commissioner, the same officer, now acting as disciplinary authority, reinstated the applicant vide order dated 18.05.2016 and also ordered to keep him under suspension and issued a fresh charge memo dated 16/18.05.2016 leveling two articles of charge, which read as under:-
"Article - I That Shri Rajinder Singh, at the time of his appointment in Custom House, Kolkata as a direct recruit Preventive Officer, forged the documents viz. Provisional Degree Certificate and final mark sheet of B.A. Examination of Ch. Charan Singh University, Meerut held in 1997 under Roll no.A 32606 & Enrolment no. M 9452370. On the strength of the said false educational certificates, though he was actually not qualified and therefore, not eligible for such appointment, Shri Rajiner Singh established his eligibility and illegally got appointment as a direct recruit Preventive Officer on sports quota w.e.f. 15.04.1999. This act of Shri Rajinder Singh exhibits lack of integrity, and is in contravention to the provision of Rule 3 (1) (i) of C.C.S. (Conduct) Rules, 1964.
Article - II That Shri Rajinder Singh, Preventive Officer, at the time of his appointment in Custom House, Kolkata as direct recruit Preventive Officer, impersonated the educational certificate (viz. „Provisional Degree Certificate and final mark sheet of B.A. Examination of Ch. Charan Singh University, Meerut held in 1997 under Roll no. A 32606 & Enrolment no. M 9452370), of another person bearing the name Shri Rajendra Singh S/o Shri Samay Singh, Gram and Post: Thaska, Janpath: Saharanpur and illegally got his appointment as a direct recruit Preventive Officer on sports quota. This act of submitting forged and manipulated certificate / Provisional Certificate of B.A. on the part of Shri Rajinder Singh tantamounts to forgery and reflects lack of integrity and shows that he has not maintained high ethical standards and honesty required of a Government servant and thus acted in a manner highly unbecoming of a Government Servant, 10 thereby contravening the provisions of Rule 3 (1) (iii) of the C.C.S. (Conduct) Rules, 1964."
2.17 Aggrieved by the order dated 28.04.2016 passed by Mr. Brojen Thamar, as In-charge Chief Commissioner of Customs (appellate authority) remanding the matter to the disciplinary authority and then by order dated 18.05.2016, now acting as Principal Commissioner of Customs (Airport & Administration), Custom House, Kolkata (disciplinary authority), suspending the applicant with retrospective effect after reinstating him and issuance him a fresh charge memo dated 16/18.05.2016, the applicant has filed the present O.A. praying for the reliefs as indicated in paragraph (1) above.
3. In support of the reliefs claimed, the applicant has pleaded the following important grounds:-
3.1 Repeated orders of remand and holding fresh inquiry on the same set of charges and on the same statement of imputations of misconduct, the respondents have denied the rightful claim of the applicant to service, to which he was duly appointed.
3.2 Impugned order dated 28.04.2016 is patently illegal, as it fails to take into consideration the letter of CCS University dated 01.09.2014 wherein the University has categorically informed as under:-
"(1) Shri Rajendra Singh passed the BA examination as a private candidate in 1997 with Roll No.A32606. Enrolment No.M 9452370. (2) As per Confidential record his father‟s initial was SS, which was changed to SR by the examination section reported on 15.09.2008. (3) The details given in letter No.Conf.20, dated 22.01.2010 are the same as per the enrolment record in the examination department. (4) 11 We have checked and didn‟t find any other person of such name in the year 1997 at this college. (5) This is to mention that date of birth should be authenticated from his matriculation certificate and the address in the enrolment record can‟t be verified as his actual/residential address."
3.3 The appellate authority‟s order dated 28.04.2016 is wrong and erroneous, as it fails to consider the letter of CCS University dated 12.04.2010 wherein the Vigilance Officer of the University has confirmed that the information sent by it vide letter dated 22.01.2010 was correct as per the University‟s records.
3.4 The earlier appellate authority, in its order dated 05.10.2012, has clearly observed that the academic transcript provided by the University squarely matched with the information earlier provided by the University vide its letters dated 22.01.2010, 12.04.2010 and 01.09.2014. 3.5 The earlier appellate authority had directed for fresh inquiry, as it found that the inquiry report was contrary to the information provided by the University and thus had remanded the matter back to the disciplinary authority to consider all these information and to come to specific findings as to the charges framed against the applicant.
3.6 The University had forwarded a copy of the namankan praman patra (Enrolment Form) duly signed by the Deputy Registrar (Examination). This document has not been considered by the disciplinary authority on specious ground that it was not under the seal of Deputy Registrar (Examination). The authenticity of this document could have been verified from the University.
123.7 The impugned order dated 18.05.2016 passed by the disciplinary authority keeping the applicant under suspension with retrospective effect is totally against law and beyond its jurisdiction. The action of the disciplinary authority to issue a fresh memo of charge dated 16/18.05.2016 leveling fresh charges and a statement of imputations of misconduct is totally unsustainable, as the appellate authority has only remanded the case to the disciplinary authority.
4. Pursuant to the notices issued, the respondents entered appearance and filed their reply, in which they have made the following important averments:-
4.1 On the basis of a complaint of one Shri Yogendra Singh regarding submission of false provisional degree certificate and final mark sheet of B.A. by the applicant, Preventive Officer, preliminary investigation by SIU of Custom House was conducted wherein it was found that the applicant had impersonated the educational certificates of another person bearing the name Rajendra Singh s/o Sh. Samay Singh, resident of Gram & Post -
Thaksa, Janpad, Saharanpur.
4.2 The inquiry officer‟s findings are not conclusive and need more attention. The disciplinary authority has exercised its power under Rule 15 (1) of CCS (CCA) Rules, 1965. It had disagreed with the findings of the inquiry officer and decided to issue disagreement note, as it found that the information furnished by the CCS University in its letters dated 13.08.2008 and 01.09.2014 were not matching.
134.3 It is found that while the name of candidate‟s father has been mentioned as „SS‟ in the letter dated 13.08.2008 of the University indicating the name of his father as „Samay Singh‟ as per the enclosure of the said letter. However, the name of father of the candidate has been mentioned as "Sh. Sri Ram" in the subsequent letter dated 30.09.2009 issued by the same authority. The namankan praman patra, which was enclosed with the letter dated 01.09.2014, although has been signed by the Deputy Registrar (Examination) but his seal has not been affixed to it.
5. On completion of pleadings, the case was taken up for hearing the arguments today. Arguments of Mr. Avijit Bhattacharjee, Ms. Upma Shrivastava and Mr. Akay Kumar Ghosh, learned counsel for applicant and that of Mr. Rajeev Kumar, learned counsel for respondents were heard.
6. Learned counsel for applicant, besides reiterating the averments made in the O.A., submitted that the same officer, Mr. Brojen Thamar, has acted as appellate and disciplinary authorities, and passed orders dated 28.04.2016 and 18.05.2016 respectively in two different capacities. Such action of Mr. Brojen Thamar has prejudiced the interest of the applicant. Learned counsel for applicant vehemently argued that the information furnished by the applicant has been duly endorsed by the University, which should have been the sole basis to proceed in the matter.
7. Learned counsel for respondents, on the other hand, stated that there have been some discrepancies in the information furnished by the University at different points of time and even the namankan praman 14 patra of the Deputy Registrar (Examination) of the University does not bear the seal of the said officer.
8. We have considered the arguments of learned counsel for the parties and perused the pleadings and documents annexed thereto.
9. The gist of the allegations leveled against the applicant is that he had indulged into an act of impersonation and had attempted to flaunt the provisional degree certificate and final mark sheet of B.A. Examination of one Rajendra Singh son of Shri Samay Singh issued to him by the CCS University, as his own. The respondents had sought information from the CCS University, who had confirmed that the provisional degree certificate and final mark sheet of B.A. submitted by the applicant were indeed issued to him by it.
10. The argument put forth on behalf of the respondents that the namankan praman patra (Enrolment Form) enclosed with the University‟s letter dated 01.09.2014 does not bear the seal of the officer, who has signed it, is indeed ridiculous. The University authorities have not denied the contents of the said letter and the namankan praman patra enclosed therewith.
11. We are also in agreement with the contention of learned counsel for applicant that the interest of the applicant has been prejudiced by the acts of Mr. Brojen Thamar, who has doubled up as appellate authority and disciplinary authority. Furthermore, the act of Mr. Brojen Thamar in issuing the order dated 18.05.2016 in which he reinstated the applicant in 15 service after the remand of the case by him acting as In-charge Chief Commissioner and then placing the applicant under suspension with retrospective effect by the same order is indeed bizarre, to say the least. Such an action was indeed patently illegal.
12. Mr. Brojen Thamar, in his substantive capacity of Principal Commissioner of Customs (Airport & Administration), Custom House, Kolkata, has issued a fresh charge sheet dated 16/18.05.2016 after the case was remanded by him in his capacity of In-charge appellate authority for the same set of charges. The earlier charge sheet was issued on 05.06.2009 under Rule 14 of CCS (CCA) Rules, 1965. Issuance of a second charge sheet on the same set of charges is impermissible.
13. Taking into consideration the discussions in the foregoing paragraphs as well as noting that the University authorities have not controverted the information furnished by the applicant in regard to his B.A. provisional degree and final mark sheet; as well as the information furnished by the University authorities vide their letters dated 13.08.2008 and 30.09.2009, we are fully convinced that the applicant has not indulged into any act of impersonation or misrepresentation. We also observe that Mr. Thamar, acting as In-charge Chief Commissioner of Customs, instead of adjudicating the statutory appeal of the applicant on its merit, on flimsy grounds, he remanded the matter to the disciplinary authority and then acting as disciplinary authority passed an order dated 18.05.2016 suspending the applicant with retrospective effect. Such acts of Mr. Thamar are not only patently illegal but also reflect poorly on his ability to understand the legal nuances. His acts certainly smack of vengeances and pre-determined mind. 16
14. Finally, considering the fact that the CCS University has endorsed the information furnished by the applicant in regard to his B.A. provisional certificate and final mark sheet, and also taking into consideration that the applicant has been subjected to the disciplinary proceedings since 2009, i.e., almost a decade, we are of the view that ends of justice would meet by allowing this O.A. Accordingly, this O.A. is allowed in the following terms:-
(i) The order dated 28.04.2016 passed by the appellate authority, order dated 18.05.2016 passed by the disciplinary authority and the charge memo dated 16/18.05.2016 are quashed and set aside.
(ii) The applicant shall be reinstated in service within four weeks from the date of receipt of a copy of this order.
(iii) The applicant shall be entitled to full salary and back-wages right from the day of suspension, i.e., 26.09.2008 and till the date he is reinstated in service.
In view of the aforesaid order, no separate order is required to be passed in M.A. No.2170/2017. It is accordingly disposed of.
No order as to costs.
( K.N. Shrivastava ) ( Justice Permod Kohli ) Member (A) Chairman December 18, 2017 /sunil/