Central Administrative Tribunal - Ahmedabad
Chandra Prakash Chandani vs Central Board Of Excise & Custom on 14 November, 2024
Central Administrative Tribunal
Ahmedabad Bench,
Ahmedabad
O.A. No.681 of 2016
Orders reserved on : 04.10.2024
Orders pronounced on : 14.11.2024
Hon'ble Mr. Jayesh V. Bhairavia, Member (J)
Hon'ble Shri Hukum Singh Meena, Member (A)
CHANDRA PRAKASH CHANDANI
Aged: 51 years (DoB being 01.08. 1965)
Son of Shri Mohan Lal Chandani
Presently serving as Superintendent of Central Excise,
Customs & Service Tax,
Under Deputy Commission of Customs,
Mundra Customs House,
Address for Communication:
No.D/115, Bhai Pratap Nagar,
NU-10/B, Shakti Nagar,
GANDHIDHAM 370201
Dist: Kutch, Gujarat.
...Applicant
(By Advocate: Shri M.S. Rao)
1. UNION OF INDIA
(To be represented through its
Secretary to the Government of India,
Department of Revenue,
Ministry of Finance,
Government of India,
North Block, New Delhi 110 001)
2. CENTRAL BOARD OF EXCISE & CUSTOMS,
(Through its Chairman, CBEC,
Department of Revenue,
Ministry of Finance, Government of India,
North Block, New Delhi 110 001)
2 OA No.681 of 2016
3. THE COMMISSIONER OF CENTRAL EXCISE,
CUSTOMS & SERVICE TAX,
Commissionerate of Central Excise,
Customs & Service Tax,
"Central Excise Bhavan"
Race Course Ring Road,
RAJKOT 360 001.
4. THE PRINCIPAL COMMISSIONER OF CUSTOMS
5-B, Port User Building (PUB),
AP & SEZ, Port Road, Mundra Port, MP & SEZ,
MUNDRA 370 421.
5. THE DIRECTOR GENERAL (VIG./C.V.O.,
Directorate General of Vigilance,
Customs & Central Excise,
2nd & 3rd Floor, HOTEL SAMART,
Kautilya Marg,
Chanakyapuri,
NEW DELHI-110 021.
6. THE PRINCIPAL CHIEF COMMISSIONER, CUSTOMS,
GUJARAT ZONE,
Office of the Chief Commissioner of Customs,
Gujarat Zone,
2nd Floor, Customs House,
Navrangpura,
AHMEDABAD 380009.
7. UNION PUBLIC SERVICE COMMISSION,
(Notice to be served through its Secretary,
UPSC, Dholpur House, Shahjahan Road,
NEW DELHI 110049)
...Respondents
(By Advocate: Ms. R.R. Patel for R-1 to R-6, none for R-7)
ORDER
Hon'ble Mr. Jayesh V. Bhairavia, Member (J):
In the instant case, being aggrieved with the order dated 20.10.2015 (Annexure A/6 refer) passed by the Appellate Authority whereby while 3 OA No.681 of 2016 upholding the findings of the Disciplinary Authority that the charges levelled against the applicant vide Charge Memorandum dated 22.6.2012 had been proved, and the said Appellate Authority had modified the punishment awarded by the Disciplinary Authority and reduced to penalty of reduction of his pay by 4 (four) stage from Rs. 21,660/- + Grade Pay Rs.5400/- in the time scale of pay of Rs.9300-34800 for a period of one year with effect from 16.4.2015 to that of 1 (one) stage for a period of six months and also directed 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 effect of postponing his future increments of pay, the applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"A. Your Lordships may be graciously pleased to call upon the official respondents herein to place before this Hon'ble Tribunal, the entire original file/s, noting file/s, internal correspondence, etc., giving rise to the issuance of the impugned documents at Annexure-A/1 to Annexure-A/6 hereto;
B. Upon the perusal of the said original files, notings, files, internal correspondence, etc., in conjunction with the pleadings contained in the memo of this OA, your Lordships may be graciously pleased to quash and set aside the impugned (i) Charge Memorandum bearing F.NO.II/8(VIG)/07/2010-11, dated 22.06.2012 at Annexure- A/l hereto, (ii) 2nd Stage Advice of the Directorate General of Vigilance, Customs & Central Excise, New Delhi, bearing F.No.V.659/5/12/4523, dated 08.12.2014 at Annexure-A/2 hereto, (iii) Communication bearing F.No.S/39(Vig)/07/2013 dated 19.12.2014 at Annexure-A/3 hereto, (iv) Order of Penalty bearing Order in Original bearing F.No.S/39(Vig)/07/2013 dated 16.04.2015 at Annexure-A/4 hereto, and (v) Corrigendum bearing F.No.S/39/(Vig)/07/2013 dated 29.04.2015 at Annexure-A/5 hereto, (vi) Order in Appeal bearing F.No.II/39- 08/Vig,/CCO/2015-16 dated 20.10.2016 at Annexure-A/6 hereto, holding and declaring the same to be without authority of law, ex facie arbitrary, unreasonable, unfair, discriminatory thereby violating the applicant's fundamental rights guaranteed by the Articles 12, 14 and 16 of the Constitution of India;
C. issue appropriate directions to the official respondents herein, in the nature of writ of certiorari, to forthwith restore the pay of the applicant herein as it was obtaining prior to the passing of the impugned order of penalty dated 29.04.2015, 4 OA No.681 of 2016 with all consequential benefits accruing to the applicants in consequence of the quashing and setting aside of the impugned documents at Annexure-A/1 to Annexure-A/6 hereto;
D. issue appropriate directions to the respondents herein including the UPSC which is the party respondent in the present OA that as and when the next DPC is convened by the UPSC for considering the eligible Superintendents of Central Excise & Customs for grant of promotion to the Group A post of Assistant Commissioner of Central Excise & Customs, the said DPC shall duly consider the applicant's case and grant promotion to the said post with all consequential benefits flowing therefrom, without being influenced in any manner whatsoever by the aforesaid departmental disciplinary enquiry proceedings initiated against the applicant herein and the consequent imposition of penalty imposed by the Disciplinary Authority and later on modified by the Appellate Authority.
D. grant such other and further relief/s as may be deemed fit and proper in the peculiar facts & circumstances of the present case."
2. The relevant facts leading to filing of the instant OA as under:-
2.1 The applicant was initially appointed as Inspector in the Respondents' Department and was subsequently promoted to the post of Superintendent. However, while serving as Superintendent of Central Excise & Customs at Ahmedabad, the applicant went on deputation to officiate as Appraiser to Kandla Special Economic Zone (in short 'KASEZ') at Gandhidharm, Kutch for a period of 3 years from the date of assumption of charge.
2.2 In pursuance of the Appointment Letter, the applicant joined the services of the KASEZ on deputation basis on 22.7.2009.
Thereafter, he was repatriated to his parent department vide order dated 01.07.2011 and posted as Superintendent at Central Excise Commissionerate at Rajkot, and in compliance of the said order, the applicant had joined his duties at Central Excise, Rajkot.
2.3 Subsequently, in terms of Rule 10 (1) of the CCS (CCA) Rules, 1965 the applicant had been placed under suspension 5 OA No.681 of 2016 with immediate effect vide order dated 30.8.2011 on the ground that a disciplinary proceeding against him is being contemplated.
2.4 The applicant was issued a Memorandum for major penalty under Rule 14 of the Rules ibid on 22.6.2012 and thereafter after preliminary inquiry held on 23.8.2012, the departmental proceeding was commenced on articles of charge annexed with the Memorandum dated 22.6.2012.
2.5 On receipt of aforesaid charge Memorandum dated 22.6.2012, the applicant had denied the charges while submitting his representation thereon before the Disciplinary Authority. Thereafter, departmental inquiry held in respect to the charges levelled against the applicant. The applicant had participated in the said inquiry.
2.6 On conclusion of the departmental inquiry held against the applicant, the Inquiry Officer submitted his Inquiry Report on 7.3.2013 (Annexure A/12) wherein the IO with following observation has recorded its findings that the charges levelled against the applicant had not been established:-
'though the consignment of wipers covered under B/E No.7128 was to be examined on 100% basis, the same was examined randomly by the PO and the CO has accepted the same, which was according to the instructions and practice prevailing at the material time. I find that the KASEZ administration has failed to interpret the instruction No. 69 (amended by instruction No. 74), issued by the Ministry of Commerce and Industries, for which CO cannot be held responsible. Therefore, it cannot be said that CO has failed to maintain absolute integrity or that his conduct was unbecoming of a government servant or that he failed to maintain devotion to duty. Even applying 6 OA No.681 of 2016 the principles of preponderance of probability, the CO cannot be held guilty.' 2.7 In terms of provisions of Rule 15 (2) of the Rules ibid, a copy of the aforesaid IO's Report dated 7.3.2013 (Annexure A/12) was supplied to the applicant by the Disciplinary Authority vide Memorandum dated 12.3.2014 and had conveyed to the applicant that he has examined the inquiry report and he tentatively in agreement with the Inquiry Officer's report.
However, final decision in the matter will be taken after obtaining 2nd stage advice from DGOV, New Delhi. The applicant has been requested to submit his representation, if any, on the aforesaid IO's report (Annexure A/13 refer).
2.8 Upon receipt of Inquiry Report dated 7.3.2013, vide communication of Disciplinary Authority dated 12.3.2014, the applicant had submitted his representation on very same day i.e. on 12.3.2014 (Annexure A/14 refer) wherein he has stated that the findings of the Inquiry Officer are based on cogent and tangible evidence produced during the course of inquiry and as such the inquiry report dated 7.3.2013 is proper and legal and further averred that he do not intend to make any further written representation/submission.
2.9 On receipt of representation of the applicant dated 12.3.2014, the Disciplinary Authority, vide letter dated 21.3.2014 (Annexure A/15 refer), had submitted his recommendations before the Director General of Vigilance, Customs & C. Excise, New Delhi and had sought CVC 2nd stage advice in the matter. The Disciplinary Authority had also forwarded entire material on record to the DG (Vig.), in terms of the provisions of Rule 15(2) of the Rules ibid.
2.10 Thereafter the Office of the Principal Commissioner of Customs vide letter dated 19.12.2014 (Annexure A/3 refer) informed the applicant that Director General (Vig.) - CVO 7 OA No.681 of 2016 tendered its 2nd stage advice and also recommended imposition of major penalty upon the applicant on the ground which has been mentioned in letter dated 8.12.2014 of Additional Commissioner Vigilance on the subject matter. Further he was requested to submit his representation on 2nd stage advice dated 8.12.2014 and also informed that whether he would like to be heard by the Disciplinary Authority in person before he takes a final decision in the matter (Annexure A/3 refer).
2.11 In response to letter dated 19.12.2014 of the Additional Commissioner Vigilance, the applicant vide his letter dated 23.12.2014 requested the Principal Commissioner of Customs to provide him copies of all documents forwarded to DG (Vig.) asking second stage advice and copies of correspondence/documents with the office of Development Commissioner, KASEZ after the inquiring authority report dated 11.7.2013 as the said documents are necessary for his defence in the matter (Annexure A/16 refer).
Thereafter vide letter dated 23.12.2014, the applicant had submitted detailed representation on the 2nd stage advice and had stated that the findings of the IO are just and correct and he has rightly exonerated him from all the charges. Further the applicant had also requested the Disciplinary Authority to give him opportunity of personal hearing before any decision is taken in the matter (Annexure A/17 refer).
2.12 In response to the request of the applicant as per his representation dated 23.12.2014, the respondent no.4 had provided the required documents to the applicant vide letter dated 8.1.2015 (Annexure A/18 refer).
2.13 Upon receipt of the same, the applicant had submitted a further representation dated 3.2.2015 (Annexure A/19 refer) 8 OA No.681 of 2016 to respondent no.4 to exonerate him from all the charges levelled against him vide the Memorandum dated 22.6.2012.
2.14 Thereafter, the Disciplinary Authority recorded its finding vide order dated 16.4.2015 (Annexure A/4 refer) that there is negligence on the part of the applicant as he failed to follow the instructions and by applying principle of preponderance of probability, his involvement cannot be ruled out particularly be daily order for examination of units was being issued by the Deputy Commissioner concerned to monitor such misuse. The fact that the applicant has only supervised the examination is not mere formality but to ensure that goods declared on the documents are only cleared. But he has failed even though he supervised the examination done by Shri G.P. Meena, the Preventive Officer. After recording the aforesaid finding, the Disciplinary Authority imposed major penalty under Rule 11 (V) of the Rules ibid upon the applicant and thereby had imposed the penalty of reduction in his pay by one stage from Rs.21,660/- + G.P. of Rs.5400/- to Rs.20,880/- + G.P, of Rs.5400/- for a period of six months w.e.f. 16.04.2015 (Annexure A/4 refer), which is impugned in the present OA.
2.15 Thereafter the Disciplinary Authority had issued a Corrigendum dated 29.4.2015 (Annexure A/5 refer), as an unintended error had crept in while determining the quantum of penalty vide Order-in-Original dated 16.4.2015, and ordered that the pay of the applicant be reduced by (04) four stages from Rs.21,660/- + Grade Pay Rs.5400/- in the time scale of pay of Rs.9300-34800 for a period of one year with effect from 16.04.2015 in terms of provisions of Rule 11 (V) of the Rules ibid.
2.16 Being aggrieved with the aforesaid orders dated 16.4.2015 and 29.4.2015 passed by the Disciplinary Authority, the 9 OA No.681 of 2016 applicant herein has preferred a statutory departmental appeal dated 14.5.2015 (Annexure A/20 refer) before the Appellate Authority. The appellate Authority vide order dated 20.10.2015 (Annexure A/6) although while upholding the findings of the DA that the charges levelled against the applicant vide charge Memorandum dated 22.6.2022 had been proved, however, set aside the aforesaid corrigendum dated 29.4.2015 and substituted it with the penalties imposed by the Disciplinary Authority vide order dated 16.4.2015, i.e., reduction of applicant's pay by 1 (one) stage for a period of six months. Hence, the applicant has filed the present OA.
3. Pursuant to notice issued by this Tribunal, the respondent nos.1 to 6 and respondent no.7, i.e., UPSC had filed their respective replied denying the claim of the applicant.
4. The applicant while refuting the contents of the replies filed by the respondents in rejoinders reiterated his submissions as mentioned in the OA.
5. On completion of pleadings, as per the request of the learned counsel for the applicant as well for respondent no.1 to 6, the matter is taken up for final hearing.
6. Shri M.S. Rao, learned counsel for the applicant mainly argued as under:-
6.1 In the present case the applicant's erstwhile Disciplinary Authority did not act independently but under the influence of the Director General of Vigilance, Central Excise & Customs, New Delhi, had initiated disciplinary proceedings against him.
It is stated that even a copy of the said 1st stage advice was not supplied/furnished to the applicant herein either at the time of issuance of the impugned charge memorandum or ever thereafter, thereby causing serious prejudice to the applicant herein while submitting his written statement of defence in 10 OA No.681 of 2016 reply to the charge memorandum. Had he been furnished a copy of the aforesaid 1st stage advice of the Director General of Vigilance, Central Excise & Customs, New Delhi, the applicant herein would have had an effective & meaningful opportunity to submit an effective & meaningful written statement of defence thereby losing an opportunity to persuade the Disciplinary Authority at the very threshold stage itself to drop the charges levelled against him. Learned counsel for the applicant by relying upon the law laid down by the Hon'ble Supreme Court of India in the case of Union of India vs. B.V. Gopinath, reported in 2014 (1) SCC 351, would submit that the Disciplinary Authority had passed the impugned order on the dictate of D.G. (Vig.) which is not tenable.
6.2 It is stated that the allegation levelled against the applicant vide the impugned Charge Memorandum dated 22.6.2012 does not constitute any "misconduct" on the his part, as on bear perusal of the article of charge, it can be inferred that the quintessence of the allegation is that the applicant during the course of his supervisory duty as an Appraiser had accepted the examination report of the Preventive Officer though the examination was not carried out by the Preventive Officer according to the existing instructions. As a matter of fact, the IO had recorded its finding that the KASEZ administration has failed to interpret the Instruction No.69 (amended by Instruction No.74), issued by the Ministry of Commerce & Industry, therefore, it was recorded by the IO that the applicant herein cannot be held responsible and further held that the charge cannot be said to be proved even applying the principles of preponderance of probability. However, the Disciplinary and Appellate Authorities both have ignored the said findings recorded by the IO and passed the impugned orders.
6.3 It is submitted that even the erstwhile Disciplinary Authority while supplying a copy of the IO's Inquiry Report vide 11 OA No.681 of 2016 communication dated 12.3.2014 had specifically stated therein that he is tentatively in agreement with the findings of the IO. Thus, it requires no imagination that there was no misconduct on the part of the applicant herein and consequently the impugned charge memorandum deserves to be quashed and as set aside holding and declaring that the allegation levelled against the applicant herein in the impugned charge memorandum does not constitute any misconduct.
6.4 Learned counsel would argue that the 2nd stage advice dated 08.12.2014 (Annexure-A/2 refer) of DG (Vig.) is ex facie illegal inasmuch as it runs contrary to the guidelines issued by the CVC vide Office Order/circular dated 16.04.2004 (Annexure-A/22). In this regard, it is submitted that as per the said guidelines the Commission's advice would also be necessary in cases of difference of opinion between the Disciplinary Authority and the CVO with regard to the action to be taken against the officer who are not within the jurisdiction of the Commission, if this difference is cannot be resolved with the intervention of the Secretary of the Ministry or Head of the Departments. According to the learned counsel, since the Disciplinary Authority at initial stage not agreed to take action against the applicant as per the advice of the Vigilance Department and subsequently, after receipt of Inquiry Report and the recommendations of the DA to agree with the same, the Vigilance Department not agreed with the said stand of the Disciplinary Authority in such circumstances, the case of the applicant ought to have been referred to the Secretary of the Ministry instead of accepting the 2nd stage advice by the DA. Therefore, the impugned order passed by the DA is contrary to the circular/Office Order issued by the CVC dated 16.4.2004. In this regard, learned counsel would argue that the 2nd stage advice of Additional Commissioner is without authority of law, since the same had been issued to the 12 OA No.681 of 2016 Disciplinary Authority without referring the case to the Secretary to the Govt. of India. Thus, all the consequent acts, decision and order(s) of the respondents' authority in the present cannot stand scrutiny of law having regard to the ratio laid down by the Hon'ble Apex Court in the case of Coal India Ltd. & others vs. Anant Saha and others, reported in (2011) 5 SCC 142, wherein the Apex Court held that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same and that in such a fact situation, the legal maxim sublate fundamento cadit opus is applicable.
6.5 Learned counsel would argue that even otherwise, the observations of the DG (Vig) / CVO in paragraph 2 of the aforesaid 2nd stage advice are not based on evidence which surface during the inquiry but the same is based on conjucture and surmises.
6.6 It is submitted that the Disciplinary Authority has not acted as an independent & impartial quasi judicial authority but under the dictates of the Vigilance Department had passed the impugned order.
6.7 It is submitted that once the Disciplinary Authority passed the penalty order dated 16.4.2015, the said DA ought not to have issued a corrigendum and enhanced the punishment imposed upon the applicant. In other words, once the Disciplinary Authority had passed the penalty order, he becomes functus officio and cannot pass further order by way of corrigendum.
6.8 Further it is submitted that the Appellate Authority has failed to appreciate that once an erstwhile Disciplinary Authority had taken a conscious decision to agree with the findings of the IO, it is not open to his successor in office to resort to the reconsideration of the said decision and take a somersault solely based on the 2nd stage advice tendered by the Vigilance Department. Accordingly, the Disciplinary Authority and the 13 OA No.681 of 2016 Appellate Authority had not assigned the reasons to defer with the initial tentative opinion expressed by the erstwhile DA. Even otherwise, the action on the part of the Disciplinary Authority to sought 2nd stage advice from the Vigilance Department is bad in law since the DA had already agreed with the findings of the IO. In support of the said submission, learned counsel for the applicant placed reliance on the decision of the Principal Bench of this Tribunal in the case of Rajeev Kapoor vs. Union of India and others in OA No.3730/2013 decided on 28.10.2014.
6.9 Learned counsel for the applicant further submitted that due to initiation of the aforesaid departmental proceeding against the applicant way back on 22.6.2022 culminating in imposition of impugned penalty upon him, his career prospectus for further promotion to higher post of Group 'A' will be seriously affected.
In sum, learned counsel for the applicant submitted that the Disciplinary as well as the Appellate Authorities had passed the impugned orders contrary to the findings recorded by the Inquiry Authority and that too under the influence of 2nd stage advice of the DG (Vig.). Therefore, the said authorities had not considered the case of the applicant independently and the same are required to be set aside.
7. Per contra, for the respondents Ms. R.R. Patel, learned counsel by referring to the contents of the reply filed on behalf of the respondents, mainly submitted as under:
7.1 The charge levelled against the applicant that while he was working as 'Appraiser' in Kandla Specific Economic Zone (KASEZ) during the period from 22.7.2009 to 30.06.2011, the restricted commodities which was cleared by examining the same on random basis by one Shri G.P. Meena, Preventive Officer under supervision of the applicant herein 14 OA No.681 of 2016 and thereby he failed to act in accordance with the instruction no.69 dated 4.11.2009 and subsequent instruction no.74 dated 31.12.2010 as well as the act of the applicant was found in contravention of DGFT notification No.43/2009-14, the said restricted cargo subsequently sized by SIIB Kandla. The applicant had accepted the examination report written bythe Preventive Officer which was not in confirmation as per the clear instruction to conduct the examination of the consignments of used clothing sale to DTA. The said act of the applicant was amounted to serious dereliction of duty and the same has resulted in unauthorised removal of restricted commodity for clearance into DTA from KASEZ. Based on vigilance report/1st stage advice, the competent Disciplinary Authority after the investigation decided to initiate disciplinary proceeding and inquiry against the applicant in terms of Rule 14 of the CCS (CCA) Rules, 1965.
Therefore, after completion of the departmental inquiry and on receipt of the representation of the CO/applicant on the on the said inquiry report, it is incumbent upon the Disciplinary Authority to seek 2nd stage advice in spite of tentative agreement with the findings of the IO that the charges are not established against the applicant during the inquiry proceedings.
In this regard, it is further submitted that on receipt of 2nd stage advice, the copy of the same was supplied to the applicant herein and was given opportunity to submit his representation/reply on the said 2nd stage advice. In fact, the applicant had submitted his representation to it and thereafter the Disciplinary Authority by following the procedure prescribed under Rule 15 (4), (5) and (6) of the Rules ibid, the impugned order has been passed. Therefore, it is not correct on the part of the applicant to alleged that he was not given due opportunity to submit his defence. Further it is also 15 OA No.681 of 2016 denied by the learned counsel for the applicant that the Disciplinary Authority passed an order in contravention of provisions of Rule 15 (2) to (4) of the Rules ibid.
7.2 Learned counsel strenuously argued that in the instant case, Disciplinary Authority has only forwarded a tentative view on Inquiry Officer's report seeking 2nd stage advice of CVO and CVO/DG (Vig.) in disagreement with the recommendation of Disciplinary Authority advised/recommended imposition of major penalty upon the applicant and subsequently Disciplinary Authority agreeing with 2nd stage advice of CVO/ DG (Vig.) issued formal order imposing major penalty upon the applicant. As such, there is no difference of opinion between the Disciplinary Authority and CVO with regard to the action taken against the applicant and thus question of seeking concurrence of Head of the Department or Secretary of the Ministry does not arise in the instant case.
The CVO's 2nd stage advice is in consonance with the instructions of CVC in its Officer Order No. 26/4/04 dated 16.04.04 and therefore, it cannot be said that it is without authority of law.
7.3 Learned counsel for the respondents emphatically submitted that on plain reading of the 2nd stage advice, it is clearly apparent that the same is advisory in nature and no specific direction has been given to the Disciplinary Authority to act only in accordance with CVO's 2nd stage advice. As such the aforesaid contention of the applicant is baseless and not sustainable in the eyes of law.
7.4 Learned counsel for the respondents further submitted that the contention of the applicant that communication dated 19.12.2014 had been issued under the dictates of Director General (Vig.)/CVO. In this regard, learned counsel 16 OA No.681 of 2016 vehemently argued that on perusal of the said letter, it can be seen that observation made therein was with regard to the fact that, a copy of 2nd stage advice of D.G.(Vig.) was served upon the applicant and the applicant was requested to made representation there against or if the applicant wants a personal hearing before issuance of final order in the matter.
By placing reliance on para-3 of CVC's instructions dated 28th September, 2000, learned counsel for the respondents drew our attention that the 2nd stage advice of D.G. (Vig.) is required to be communicated to the charged delinquent and accordingly, the same was communicated to the applicant. Thus, the communication was done as per procedure laid down in the Rules ibid as well as in terms of the aforesaid CVC's instructions and not on the dictate of any third party.
7.5 Learned counsel for the respondents further submitted that so far as the contention of the applicant that the Disciplinary Authority's decision to impose penalty was influenced by the 2nd stage advice of CVO and therefore, is not legally sustainable is concerned, the same is absolutely void, as it is evidently clear from the said penalty order passed by the Disciplinary Authority, specific findings had been recorded by the Disciplinary Authority while imposing major penalty upon the applicant. While deciding the issue, all the available materials have been taken into account by the Disciplinary Authority, which includes the IO's Inquiry Report, 2nd stage advise of CVO etc., to arrive at justifiable decision. Therefore, the same is an independent decision of the Disciplinary Authority. Learned counsel emphasised that there is no dictation from any authority as is revealed from the record of this case that the Disciplinary Authority, who had agreed with the findings of the I.O. report, is not the same, who passed the impugned order. Therefore, it is 17 OA No.681 of 2016 incorrect to say that, imposition of penalty has been done only on receipt of 2nd stage advice from CVO. The decision taken is independent and not influenced by any third party.
7.6 Learned counsel for the respondents submitted that the applicant had raised objection about issuance of the corrigendum dated 16.4.2015 vide which punishment had been enhanced by the Disciplinary Authority. In this regard, it is apt to mention that while considering the appeal of the applicant, the Appellate Authority had as such set aside the said Corrigendum dated 16.4.2015 vide its order dated 20.10.2015. Therefore, it is not open for the applicant to raise any grievance whatsoever in respect to the corrigendum/order dated 16.4.2015 passed by the Disciplinary Authority.
7.7 Learned counsel for the respondents further submitted that applicant raised an argument that the Appellate Authority did not appreciate the fact that, once the earlier Disciplinary Authority had taken a decision to agree with the findings of the I.O., it is not open to the successor to take a decision on the ground that the CVO disagreed with the decision of the erstwhile D.A. In this regard, learned counsel drew our attention to the order passed by the Appellate Authority and submitted that the Appellate authority in his findings had categorically observed that, the Disciplinary Authority, while deciding the case, has gone through the various documents and other supporting documents and come to the conclusion on the same independently. Meaning thereby that, the decision was uninfluenced. Also, the final decision making authority was different from the erstwhile authority. Therefore, the said contention of the applicant is not tenable and baseless.
7.8 Further with regard to applicant's contention that 2nd stage advice tendered by the DG (Vig.) is against the Instructions 18 OA No.681 of 2016 issued by the CVC in 2004 and against the law laid down by the Hon'ble Supreme Court in case of Coal India Ltd. & Others Vs. Anant Saha (supra) is concerned, learned counsel for the respondents would argued that it can be seen that the very said submission of the applicant was as such considered and not acceded to by the Appellate Authority and had specifically held that the Disciplinary Authority has gone through the entire records of the case i.e. the report of the I.O, 2nd stage advice of the CVO, the defence submission made by the applicant and other documents available on records etc. and as such by following the procedure laid down in Rule 15 of the Rules ibid, the Disciplinary Authority had passed an independent order that to had assigned reasons for not accepting the grounds/defence raised by the applicant. Therefore, the judgment relied upon by the learned counsel for the applicant is not helpful to him and the contention of the applicant is as such bereft of merit and the same is liable to be rejected.
7.9 Learned counsel for the respondents would also argued that so far as contention of the applicant that due to initiation of disciplinary inquiry and imposition of penalty would put his career in jeopardy and his case for promotion to the higher grade might be rejected by the DPC that may convene in future is concerned, the same is merely a hypothetical contention, which has no nexus with the issue involved in the present O.A.
8. We have also perused the reply filed by the respondent no.7, i.e., UPSC, in which the respondent no.7 stated that in the present OA, mainly the grievance of the applicant is substantially an administrative issue pertaining to the Department which is applicant's cadre controlling authority. The Commission was not consulted by the Department in aforesaid Disciplinary proceedings and the Penalty order in question has not been issued in the name of the President of India. Accordingly, the 19 OA No.681 of 2016 Commission has no role to play in the matter. Further, no action of the Commission has been challenged in the OA. The very said respondent had also averred in the reply that the grievance raised by the applicant in the present OA with regard to DPC might not consider his case for further promotion do to pendency of the present disciplinary proceedings and his right for fair consideration may be jeopardised, the said submission of the applicant is hypothetical and such assumption is misconceived as the DPC is duty bound to follow the procedure prescribed for consideration of the candidature of the candidate for higher promotion under Recruitment/service rules. Therefore, the instant Application suffers from mis-joinder of parties as unnecessarily the Commission is impleaded in the OA.
9. Heard Mr. M.S. Rao, learned counsel for applicant, Ms. R.R. Patel, learned counsel for respondent nos.1 to 6 and perused the material on record, including the reply filed by the respondent no.7, i.e., UPSC.
10. At the outset, keeping in view the submissions of respondent no.7, i.e., UPSC as noted in para 8 above, we are of the consider opinion that since the Commission was not consulted by the Department in aforesaid Disciplinary proceedings and the Penalty order in question has not been issued in the name of the President of India. Accordingly, the Commission has no role to play in the matter. Further, the grievance raised by the applicant in the present OA with regard to DPC might not consider his case for further promotion do to pendency of the present disciplinary proceedings and his right for fair consideration may be jeopardised, the said submission of the applicant is hypothetical and such assumption is misconceived as the DPC is duty bound to follow the procedure prescribed for consideration of the candidature of the candidate for higher promotion under Recruitment/service rules. Therefore, we are in agreement with the submission of instant Application suffers from mis-joinder of parties as unnecessarily the Commission is impleaded in the OA and thus, the prayer sought against the respondent no.7, i.e., UPSC by the applicant is devoid of merit, accordingly, same is declined.
20 OA No.681 of 201611. It emerges from the record that in respect to the charge Memorandum dated 22.6.2012, for a major penalty, departmental proceeding was instituted against the applicant herein, for major penalty under Rule 14 of the CCS (CCA) Rules, 1965. Following charge levelled against the applicant:-
"STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI C.P. CHANDANI, SUPERINTENDENT CENTRAL EXCISE AND CUSTOMS Shri C.P. Chandani was posted and functioning as Appraiser to Kandla Special Economic Zone during the period from 22.07.2009 to 30.06.2011. The officers of SIIB, Custom House, Kandla intercepted 02 trucks cleared from KASEZ and took these trucks to Central Warehousing Corporation near KASEZ, Gandhidham for detailed verification on 06.06.2011. During the course of examination, the cargo was found to be un mutilated old and used worn clothing consisting of t-şhirts, jeans, shorts, ladies top, ladies garments, blazer, sweater etc., a restricted commodity for clearance into DTA from SEZ as per DGFT Notification No. 43/2009-14 dated 19.5.2010, instead of declared cargo "Cotton wipers" cleared by M/s. Om Siddh Vinayak Impex Pvt Ltd., KASEZ vide B/E No. 7128 dated 30.5.2011. This consignment was examined by Shri G.P.Meena, Preventive Officer on random examination basis under the supervision of Shri C.P.Chandani, Appraiser. The SIIB, Kandla informed the O/o Development Commissioner KASEZ vide their letter F.No. S/43-06/2011- 12/SIIB/822 dated 08.06.2011 that the said cargo was placed under seizure under panchnama dated 06.06.2011.
2. That the Joint Commissioner of Customs, Custom House, Kandla vide his Order-in-Original No. KDL/1422/JC/PAV/GR III/11-12 dated 27.6/15.7.2011 adjudicated the matter and ordered as below:-
1. Imposed redemption fine of Rs. 1.20 lakh on goods.
2. Imposed redemption fine of Rs. 60,000/-
on two trucks.
21 OA No.681 of 20163. Imposed penalty of Rs. 1.00 lakh on M/s. Om Siddh Vinayak Impex Pvt Ltd., KASEZ.
4. Re-determined the value of goods at Rs.
4.75 lakh."
M/s. Om Siddh Vinayak Impex Pvt ltd, KASEZ paid the fines imposed by the above O-I-O on 28.06.2011 vide TR challans No. 002/11-12, No. 003/11-12 and 001/11-12.
3. The Ministry of Commerce & Industry issued Instruction No. 69 dated 04.11.2010 in the form of guidelines to regulate functioning of plastic/used clothing units in SEZs. These instructions mandated 100% inspection of the DTA consignments of "old and Used clothings" i.e. "Old and Used mutilated rags, wipers and chindies" falling under Customs Tariff Heading 62109010, 63109040 and 63101020. One of the 4 instructions contained in Instructions No.69 dated 04.11.2010 was "100% inspection of the consignment of used clothing sales to DTA shall be undertaken at the gate of the SEZ and not at the premises of the unit".
Later on, vide Instruction No. 74 dated 31.12.2010, Ministry of Commerce modified the above instruction to read as:
"2(ii) 100% inspection of the consignment of used clothing sale to DTA shall be undertaken at the premises of the unit".
4. Whereas, in accordance to the instructions, the Preventive Officers of Kandla SEZ were regularly deputed for 100% examination for specific units of worn clothing and Appraisers were also deputed to supervise over a group of Preventive Officers. As per order of Deputy Commissioner of Customs, KASEZ dated 31.5.2011, Shri G.P.Meena, PO was assigned to do 100% examination of DTA consignments of mutilated, old & used clothes, wipers, chindies etc of M/s. Om Siddh Vinayak Impex Pvt Itd., KASEZ and Shri C.P.Chandani, Appraising Officer was deputed to supervise the work of Shri G.P. Meena, PO.
5. As per DGFT Notification No.43/2009-14 dated 19.05.2010 worn clothing had been put up under restricted category and no DTA sale was allowed. Examination of the goods under Bill of Entry No. 22 OA No.681 of 2016 7128 dated 30.5.2011 was done by Shri G.P. Meena, Preventive Officer under the supervision of Shri C.P. Chandani, Appraiser and the representative of M/s Om Siddh Vinayak Impex Pvt. Ltd. Therefore, the consignment of un mutilated old and used worn clothing consisting of t-shrit, jeans, shorts, ladies top, ladies garments, blazer, sweater etc. cleared by Shri G.P. Meena, Preventive Officer under the supervision of Shri C.P. Chandani, Superintendent was found to be contravening the DGFT Notification No. 43/2009- 14 dated 19.05.2010. Shri G.P. Meena Preventive Officer, KASEZ as well as Shri C.P.Chandani, Appraiser, KASEZ failed to notice restricted cargo in the said consignment which was subsequently seized by SIIB, Kandla.
Further, inspite of clear instructions to conduct the examination as per the existing instructions, Shri C.P. Chandani had accepted the examination reports written by the Preventive Officer which was not in conformation to their examination orders. "Out of Charge" of the goods was given by Shri C.P. Chandani, Appraiser without any objection.
6. The aforesaid acts of Shri C.P. Chandani amounted to serious dereliction of duty which resulted in unauthorized removal of un-mutilated worn clothes, a restricted commodity for clearance into DTA from KASEZ
7. The above said act on the part of Shri C.P. Chandani, Superintendent is unbecoming of him as a government servant. By this act Shri C.P. Chandani, Superintendent has also failed to maintain absolute integrity and devotion to duty. Thus Shri C.P. Chandani, Superintendent, Central Excise, has contravened the provisions of Rule 3(1) (i), (3)(1) (ii) & 3(1) (iii) of CCS (Conduct) Rules 1964.
8. Shri C.P. Chandani, Superintendent holding a supervisory post, failed to take possible steps to ensure the integrity and devotion to duty of Shri G.P. Meena, Inspector for the time being under his control and authority.
9. In this manner, Shri C.P. Chandani, Superintendent by his aforesaid act has also violated Rule 3 (2) (i) of CCS (Conduct) Rules 1964."
23 OA No.681 of 201611.1 On denial of the aforesaid charges by the CO, ie., applicant herein, the Disciplinary Authority had initiated departmental inquiry against the applicant and undisputedly the applicant had participated in the said departmental inquiry.
On conclusion of the departmental inquiry, the Inquiry Officer had submitted his Inquiry Report dated 7.3.2013 wherein he has recorded his findings to the effect that "though the consignment of wipers covered under B/E. No.7128 was to be examined on 100% basis, the same was examined by the PO and the CO has accepted the same, which was according to the instructions and practice prevailing at the material time." Further IO had also recorded that '....the KASEZ administration has failed to interpret the instruction No.69 (amended by instruction no.74), issued by the Ministry of Commerce and Industries, for which CO cannot be held responsible. Therefore, it cannot be said that CO has failed to maintain absolute integrity or that his conduct was unbecoming of a government servant or that he failed to maintain devotion to duty'.
Further IO in his report recorded that even applying the preponderance of probability, the CO cannot be held guilty and accordingly, had concluded that the charges levelled against the applicant are not established.
11.2 On receipt of aforesaid Inquiry Report, as per the requirement stipulated in Rule 15(2) of the CCS (CCA) Rules, the said inquiry report was forwarded to applicant by the Disciplinary Authority vide its communication dated 12.3.2014 which reads as under:-
"A Disciplinary proceeding under Rule 14 of C.C.s (CCA) Rules, 1965, was initiated by the Commissioner of Central Excise, Rajkot against Shi C.P Chandan., Superintendent, vide Charge Memorandum l/8(VIG)07/2010-11 DATED 24 OA No.681 of 2016 22.06.2012 Shri C.P Chandani, did not admit the charges brought out against him. Therefore, Shri N .Mohan Krishna, Assistant Commissioner of Central Excise, Rajkot was appointed as Inquiry Officer vide Order dated 16.07.2012 issued from F No.ll/8 (VIG) 07/10-11. The Inquiry Officer has submitted his report vide letter dated 07.03.2013 and a copy of the said Inquiry Report dated 07.03.2013 is enclosed herewith.
I have examined the Inquiry Report dated 07.03.2013 and I tentatively agree with the Inquiry Officer's Report. However, final decision in this matter will be taken after obtaining 2nd stage advice from DGOV, New Delhi.
You are, therefore, requested to submit your representation on the Inquiry Report dated 07.03.2013 within 15 days and also mention whether you would like to be heard in person before the Disciplinary Authority takes a final decision in the matter. Please also note that if you fail to submit your representation within the time limit mentioned above, the case will be decided on the basis of the material adduced in the inquiry.
(emphasis supplied) 11.3 The CO, i.e, the applicant herein, on receipt of Inquiry Report had submitted his representation wherein he had stated that the 'Disciplinary Authority had tentatively agreed with the Inquiry Report' and further stated that the said Inquiry Report dated 7.3.2013 is proper and legal. Hence, do not intend to make any further written representation and submission.' 11.4 Thereafter the Disciplinary Authority had submitted his recommendations to the Directorate General of Vigilance and sought the 2nd stage advice vide communication dated 21.3.2014 since the departmental proceeding was instituted against the applicant based on vigilance input and report.
In turn, Director General of Vigilance vide communication dated 8.12.2014, while tendering its 2nd Stage advice had opined/advised that "it is not deniable fact that goods 25 OA No.681 of 2016 examined by Shri Meena, Inspector and supervised by Shri Chandani, Supdt found to contain goods not declared but a restricted item for clearance to DTA from SEZ. Even though the consignment was examined on random basis as per the prevalent practice but it cannot absolve them as these were seized by the officers of SIIB on the basis of specific intelligence after examination by these officers. To absolve these officers on ground that there was lacuna in the examination procedure prescribed during relevant period and that the unit has accepted the negligence on the part of its staff do not appear correct. Unit has already been penalised under relevant Act. Thus, by applying the principle of preponderance of probability, their involvement cannot be ruled out, particularly, when daily order for examination of units was being issued by the Deputy Commissioner concerned to monitor such misuse. The fact that Shri Chandani, has only supervised the examination are not mere formality but to ensure that goods declared on the documents are only cleared but he has failed even though he has supervised the examination by Shri Meena."
With the aforesaid opinion/advice, the DG (Vig.) had recommended imposition of major penalty upon the applicant.
11.5 It is further noticed that a copy of 2nd stage advice dated 8.12.2014 of DG Vigilance was supplied to the applicant from the office of the Commissioner of Customs vide communication dated 19.12.2014 (Annexure A/3 refer) and was directed to submit his representation on the said 2nd stage advice. Accordingly, with a view to submit his defence/representation, the applicant vide his letter dated 23.12.2014 requested the Principal Commissioner of Customs to provide him copies of all documents forwarded to DG (Vig.) while seeing second stage advice and copies of correspondence/documents with the office of Development Commissioner, KASEZ after the inquiring 26 OA No.681 of 2016 authority report dated 11.7.2013 as the said documents are necessary for his defence in the matter (Annexure A/16 refer). At the same time, the applicant had submitted a representation before the Disciplinary Authority requesting to exonerate him.
It is an admitted fact that the documents as sought by the applicant had been supplied to him by the Disciplinary Authority vide letter dated 8.1.2015 (Annexure A/18 refer)..
It is noticed that the applicant had also requested the Disciplinary Authority to give him opportunity of personal hearing before any decision is taken in the matter (Annexure A/17 refer). The said request as such acceded to by the Disciplinary Authority.
Thereafter, the applicant had submitted his further/additional representation dated 3.2.2015 (Annexure A/19 refer) to the Disciplinary Authority and again requested to exonerate him from all the charges levelled against him vide the Memorandum dated 22.6.2012.
11.6 At this stage, it is important to state that the provisions of Rule 15 (4) of the Rules ibid stipulates that the Disciplinary Authority shall consider the representation submitted by the CO in terms of sub rule (2) and/or clause (b) of sub-rule (3) of Rule 15 of the Rules ibid, if any, and thereafter requires to record its findings before proceeding further in the matter as specified in sub-rules (5) and (6) of the Rule 15 of the Rules ibid.
After following the procedure as prescribed under Rule 15 (4) of the Rules ibid, the provisions of Rule 15 (5) of the Rules ibid mandate that if the Disciplinary Authority having regard to its findings on all or any of the article of charge is of the opinion that any of the penalties specified in Clause (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, 27 OA No.681 of 2016 notwithstanding anything contained in Rule 16, make an order imposing such penalty.
Further, the provision of Rule 15 (6) stipulates that if the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant opportunity for making any representation on the penalty proposed to be imposed.
11.7 It emerges from the record that after the defence/representation submitted by the applicant on 2nd stage advice, by considering the same as well as the material on record, the Disciplinary Authority had recorded its final finding that charge levelled against the applicant is established and thus he is liable for penalty. It is noticed that for the aforesaid conclusion, the Disciplinary Authority has assigned detailed cogent reasons and accordingly had passed the impugned order dated 16.4.2015 (Annexure A/4 refer).
At this stage, we deem it appropriate to reproduce the relevant finding of the Disciplinary Authority in the order dated 16.4.2015 which reads as under:
"9.3 The CO in his defence stated that as per the Circular No.1/2005-06, dated 05.05.2005 issued by DC, KASEZ, the duties of Appraiser is to give pass out order on the Bill of Entry after confirming the classification, valuation and payment of duty with respect to verification report and accordingly it is not correct to say that the examination of the goods were supervised by him. The Circular dated 5.5.2005 in general terms specifies the duties to be carried out by the Appraiser. But in the present case, in respect of the goods in question, there are specific instructions from time to time to carry out the 100% 28 OA No.681 of 2016 examination/supervision of the goods. Also it is an admitted fact that daily orders being issued by DC, KASEZ, wherein 100% examination of DTA consignments of "old and used clothing units" is ordered naming the Appraisers and Preventive Officers as well as name of such units and on 31.05.2011 the CO and the Preventive Officers were assigned such 100% examination at the unit of M/s. Om Siddh Vinayak. Therefore the contention of the CO is not tenable on this ground.
9.4 Further, the C.O. in his defence contended that the representative of the unit during the cross examination has accepted that it was due to negligence of their staff that wrong goods were removed and accepted the entire liability and accordingly he contended that it was lacuna on the part of the unit. He also contended drawing attention to the Order-in-Original dated 27.06/15/07.2011, wherein it was specifically recorded by the adjudicating authority based on the letter of unit, that the said unfortunate incident happened due to negligence of their junior staff of the unit and they accepted the error and took full responsibility to pay fine / penalty and additional duty, and therefore it can reasonably be inferred that there was no direct or indirect involvement or knowledge on the part of the any officer.
9.5 The above contention of CO is not acceptable. In the present issue, there are specific instructions from the authorities for 100% examination of and supervision of the goods in question. It is also an admitted fact that the consignment, which is subject to 100% examination by the Preventive Officer Shri G.P. Meena under the Supervision of CO, when intercepted and examined by the SIIB, Kandla, found to contain the restricted items. The admission of the unit that change of goods happened due to their negligence is secondary thing. In first place, this would not have happened. Had the CO and the Preventive Officers acted as per the instructions i.e. 100% examination and supervision of the goods in question this would not have happened.
9.6 I, therefore, I find that the examination of the consignment under Bill of Entry No.7128 dated 30.05.2011 containing of un mutilated old and used worn clothing consisting of T-shirts, Jeans, Shorts, Ladies Top, Ladies Garments, Blazer, Sweater etc. was cleared under supervision of Shri C.P.Chandani, Superintendent which 29 OA No.681 of 2016 was found to be contravening the DGFT Notification No.43/2009-14 dated 19.05.2010. Shri C.P.Chandani, Appraiser KASEZ failed to notice restricted cargo in the said consignment, which was subsequently seized by SIIB, Kandla. Further, in spite of clear instructions to conduct the examination as per the existing instructions, Shri C.P.Chandani had accepted the examination reports written by the Preventive Officer which was not in conformation to their examination order. "Out of Charge"
of the goods was given by Shri C.P.Chandani, Appraiser without any objection, I, therefore, hold that there is negligence on the part of the CO as he failed to follow the instructions.
9.7 I find that the aforesaid acts of Shri C. P. Chandani amounted to dereliction of duty which resulted in unauthorized removal of un-mutilated worn clothes a restricted commodity for clearance into DTA from KASEZ, which is unbecoming of him as a government servant. By this act Shri P. Chandani Superintendent has also failed to maintain absolute integrity and devotion to duty and contravened the provisions of Rule 3(1) (i), 3(1) (ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
9.8 Further, I find that by this manner Shri C. P. Chandani, Superintendent by his aforesaid act has also violated Rule 3 (2) (i) of CCS (Conduct) Rules, 1964.
9.9 Thus, I find that by applying Principle of Preponderance of Probability their involvement cannot be ruled out particularly when daily order for examination of units was being issued by the Deputy Commissioner concerned to monitor such misuse. The fact that Shri C.P.Chandani has only supervised the examination is not mere formality but to ensure that goods declared on the documents are only cleared. But he has failed even though he has supervised the examination by Shri G.P.Meena. I therefore, find that the case appropriate for imposition of major penalty under Rule 11 (V) of the CCA (CCS) Rules, 1965.
9.10 However, while determining the penalty I consider the fact that the Charged Officer might have gone through lot of mental agony due to prolonged disciplinary proceedings and already suffered enough for almost four years."
30 OA No.681 of 201611.8 It can be seen that after recording the aforesaid findings and conclusion, the DA held that the CO deserves major penalty under Rule 11 of the CCS (CCA) Rules, 1965. Accordingly, impugned order dated 16.4.2015 awarded the penalty of reduction in the applicant's pay by I (one) stage from Rs.21660/- + G.P. of Rs.5400/- to Rs.20,880/- + G.P, of Rs.5400/- in the time scale of pay Rs. 9300-34800 for a period of 6 (six) months w.e.f. 16.04.2015. It is further directed that applicant will not earn increment of pay during the period of such reduction and on the expiry of period of six months, the reduction will not have the effect of postponing his future increments of pay.
In this regard it is apt to mention that vide corrigendum dated 19.5.2015, the Disciplinary Authority ordered that the pay of the applicant has been reduced by 4 (four) stages for a period of one year in stead of reduction of applicant's pay by 1 (one) stage for a period of six months (as stated in order dated 16.4.2015).
11.9 It can be seen that before passing impugned order dated 16.4.2015, by following principles of natural justice as well as in terms of provisions of Rule 15 of the Rules ibid, the Disciplinary Authority had granted ample opportunity to the applicant to submit his defence/representation and thereafter passed the impugned order that too by assigning independent finding for its conclusion. Therefore, it is not correct on the part of the applicant that he was not granted due opportunity to defend his case by the Disciplinary Authority. Thus, in our considered view the said decision making process on the part of the Disciplinary Authority is in consonance with the provisions of Rule 15 (2) to (6) of the Rules ibid.
12. So far submission of applicant that once the Disciplinary Authority had conveyed his tentative agreement with IO's 31 OA No.681 of 2016 report, the said opinion of the DA, become final and thereafter it is not open for the DA to sought 2nd stage advice from the Vigilance is concerned, in this regard it is required to mention that undisputedly the DA in his communication dated 12.3.2014 had categorically conveyed to the applicant that he is tentatively agreed with the findings of the IO's report and final decision in the matter will be taken after obtaining 2nd stage advice from DGOV, New Delhi. Therefore, it can be seen that the DA has not taken any final decision in the matter.
12.1 At this stage, it is apt to mention that undisputedly the departmental proceeding instituted against the applicant based on report/first stage advice received from the Vigilance Department, therefore in such circumstances, it is incumbent upon the Disciplinary Authority to submit its recommendations while seeking 2nd stage advice from the Vigilance Department in terms of various instructions issued by the CVC as well in terms of provisions of Rule 15(3) of the Rules ibid.
12.2 Therefore, the opinion expressed by the Disciplinary Authority at the stage of Rule 15 (2) of the Rules ibid (i.e., while forwarding the copy of IO's report to the CO) cannot be termed as a final decision or final finding of the Disciplinary Authority in the matter in terms of Rule 15 (4) to (6) of the Rules ibid.
12.3 Suffice to state that before recording final finding, the Disciplinary Authority has to follow the provisions prescribed under sub rule (3) (a) & (b) and (4) of Rule 15 of the Rules ibid. Thus, any opinion or agreement/disagreement conveyed to the delinquent/CO by the Disciplinary Authority while supplying a copy of Inquiry Report in terms of Rule 15(2) and inviting representation of the applicant on the said Inquiry Report/disagreement note, if any, such opinion or agreement/disagreement of the Disciplinary Authority remains 32 OA No.681 of 2016 tentative in nature as per the mandate stipulated in subsequent provisions of sub-rules (3) to (6) of Rule 15 of the Rules ibid.
12.4 Therefore, the above contention of the applicant is not tenable in the peculiar facts and circumstances of the present case as discussed herein above. Therefore, the judgment/order relied upon by the applicant in this regard is also not helpful to him.
13. It is emphasised that on receipt of inquiry report, the Disciplinary Authority after following the procedure laid down in sub-rule (2) to (4) of Rule 15 of the Rules ibid, can record its conclusive finding on all or any of the article of charge and pass an order to impose the penalty upon the CO specified in Rule 11 of the Rules ibid.
In the present case, as noted herein above, undisputedly after following the procedure laid down in Rule 15 (3) to (6) of the Rules ibid, the Disciplinary Authority had passed the order dated 16.4.2015. Therefore, the said decision making process on the part of the Disciplinary Authority cannot be said to be suffered from any legal infirmities or procedural irregularities.
14. Even otherwise, in absence of any material to establish any prejudice caused to the applicant while concluding the departmental proceeding against him, it cannot be said that the same was held in violation of principles of natural justice.
15. Further it is noticed that being aggrieved with the order passed by the Disciplinary Authority, the applicant filed his statutory appeal before the Appellate Authority on 14.5.2015 (Annexure A/20). It is noticed after granting that an opportunity of personal hearing to the applicant as well as to his defence assistance, the Appellate Authority by assigning detailed reasons for upholding the decision of the DA and had passed the impugned order dated 20.10.2015 (Annexure A/6 refer) 33 OA No.681 of 2016 15.1 So far as the submission of the learned counsel for the applicant that the Appellate Authority had not considered the grounds raised by him in his appeal and had passed the impugned order in a mechanical manner is concerned, the said submission of the applicant is in our considered view runs contrary to the finding recorded by the Appellate Authority in paras 11 to 16 of order dated 20.10.2015 (Annexure A/6 refer), which reads as under:-
"11. I have also carefully considered all the objections raised by the appellant against the order of the DA regarding legal and procedural infirmities which might have had adversely affected the interests of the appellant, allegedly unfairly. The main contention of the appellant in his defence is that as an appraiser, he carried out his duties i.e. of verification of valuation and classification according to Circular No. 01/2005- 2006 issued by Deputy Commissioner, Customs KASEZ; the DA had tentatively agreed to IO report, however later on decision given was guided by CVO and that the penalty was increased by issuing corrigendum. These contentions of the appellant, need to be tested against the facts and circumstances of the case.
12. The undisputed facts of the case are that M/s Om Siddh Vinayak Impex Pvt. Ltd., KASEZ filed a B/E declaring cargo as of "Cotton wipers". Vide daily order dated 31-05-2011 the Deputy Commissioner, KASEZ deputed Shri C. P. Chandani, Appraiser and Shri G. P. Meena, Preventive officer for 100% examination in respect of the goods of specific unit, which was examined by Shri G.P. Meena, Preventive Officer on random examination basis under the supervision of Shri. C. P. Chandani, Appraiser. On 06-06-2011 the officers of SIIB, Customs Kandla intercepted 02 trucks belonging to M/s Om Siddh Vinayak Impex Pvt. Ltd., declared as "Cotton wipers", the cargo, was however found to be of unmutilated old and used worn clothing consisting of T-shirts, Jeans, Shorts, Ladies Top, Ladies Garments, Blazer, Sweater etc. The said commodity is restricted for clearance into DTA from SEZ as per DGFT Notification No.43 /2009-14 dated 19.05.2010. Shri G.P.Meena, Preventive Officer, KASEZ as well as Shri C.P. Chandani, Appraiser, KASEZ thus failed to notice restricted cargo in the said consignment, and Shri C.P. Chandani, Appraiser, accepted the examination reports written by the Preventive Officer, which was not in conformity with the examination order.
13. Now, coming to the main defense contention of the appellant that as an appraiser, he carried out his duties i.e. of verification of valuation and 34 OA No.681 of 2016 classification according to Circular No. 01/2005-2006 issued by Deputy Commissioner, Customs KASEZ. As a senior customs officer, the appellant is expected to know that when specific directions have been given relating to examination, especially keeping in mind the guidelines contained in instruction no.69/2010 dated 04.11.2010 as amended relating to commodities in question, these shall prevail over any general circular or guideline. The very fact that despite existence of a general circular applicable to all commodities relating to clearances from SEZ to DTA, there arose a need to issue a specific instructions for used clothing requiring 100% examination and supervision, suggesting their vulnerability to abuse should have alerted the officer to act more diligently, rather than coming out with a lame excuse that he was not required to supervise examination as per Circular No.01/2005 dated 05.05.2005. I therefore find no merit in his contention.
14. As regards his contention that DA has not applied his mìnd independently his decision has been influenced by the CVO as the DA had tentatively agreed with the findings of I.O. holding charges having not been proved. I do not find much merit in these averments. The appellant himself contends that the DA had tentatively agreed with the findings of the I.O. which itself suggests that it was only a provisional decision subject to complete appreciation of all the relevant factors which also involves consultation with CVO. What is more relevant is whether the basis of disagreement with IOs findings have been conveyed to appellant and whether he has been afforded full opportunity to defend himself or not. I find that a copy of disagreement note was furnished to the appellant and his comments sought before taking a final decision on it. Therefore, I hold his submissions as untenable.
15. Coming now to his averments that the DA has by issuing corrigendum, substantially enhancing the quantum of punishment reviewed his own decision which was not permissible, I find considerable merit in it. I observe that initially penalty of reduction in pay by one stage for a period of six months was imposed which was later on enhanced to reduction of pay by four stage for a period of one year on the grounds that unintended error had crept in.
16. I feel that once an order has been issued imposing certain penalties, these can only be enhanced or reduced following appellate / review procedures. There can be a justification for amending an order only if a mistake has crept in on account of clerical or typographical error which should be apparent from the records, no case of which has been made in the instant case, except recording unintentional error. I am therefore inclined to agree with the contention of the appellant that issuance of corrigendum 35 OA No.681 of 2016 substantially enhancing the penalties is nothing but a review of one own order passed and conveyed and is not permissible as per law."
15.2 It can be seen that the Appellate Authority had dealt with each points raised by the applicant in his appeal and had assigned cogent reasons to disagree with the submissions of the applicant and while upholding the decision of the Disciplinary Authority. Therefore, it is not correct on the part of the applicant to allege that the Appellate Authority had passed the impugned order in a mechanical manner.
15.3 Further, it can be seen that while upholding the decision of the Disciplinary Authority, at the same time, the Appellate Authority had interfered with the quantum of penalty awarded by the Disciplinary Authority vide corrigendum dated 29.4.2015 and restored the penalty of reduction of pay by I (one) stage for the period of six months which was originally awarded by the Disciplinary Authority vide order dated 16.4.2015. Thus, it can be seen that by following the principles of natural justice, the Appellate Authority had passed a speaking order.
15.4 So far submission of learned counsel for the applicant that in the case of disagreement between the views of the Disciplinary Authority and DG (Vig.), the case ought to have been referred to the Secretary to the Government of India to resolve disagreement in terms of CVC's Office Order dated 16.04.2004, but in the case of the applicant, the respondents had passed the impugned order in violation of the said instructions is concerned, in this regard, suffice to say that at the time of supplying a copy of the IO's report to the applicant, though the Disciplinary Authority expressed opinion about his tentative agreement with the finding of the IO but at the same time had also conveyed to the applicant in specific terms that "final decision in the matter will be taking after taking 2nd stage advice from DGOV, New Delhi". Meaning thereby, the opinion expressed by the Disciplinary Authority in 36 OA No.681 of 2016 his communication dated 12.3.2014 at the stage of compliance of provisions of Rule 15 (2) of the Rules ibid was only tentative and not the final one.
Further, as noted hereinabove, the departmental proceeding was instituted against the applicant based on the vigilance report/first stage advice and on receipt of representation of the applicant on IO's report, the Disciplinary Authority had submitted its recommendations and sought 2nd stage advice from the Vigilance Department in terms of various instructions issued by the CVC including the instructions contained in the very said CVC's Office Order dated 16.4.2004, as relied by the applicant herein.
Thereafter, on receipt of 2nd stage advice, the same was supplied to the applicant and on receipt of representation of the applicant thereon, the disciplinary authority proceeded further in terms of provisions of Rule 15 (4) of the Rules ibid and had recorded its finding in respect to the charge levelled against the applicant and as such there is no difference of opinion between the Disciplinary Authority and the Vigilance Department with regard to the action to be taken against the officer and there was no occasion to obtain advice from the CVC or to refer the matter to the Secretary or head of the department. Therefore the said submission of the applicant is not tenable in the eyes of law.
15.5 It can be seen that the DA and AA both the authorities had afforded ample opportunity to the applicant for submission of his defence/representation/appeal and it is evident that the CO, i.e., the applicant herein, had submitted his defence/ representation as also additional representation on failing to avail the personal hearing. Under the circumstances, it is not correct on the part of the applicant to raise the grievance that he was not afforded due opportunity to defend his case. Further as noted hereinabove, both the authorities after considering 37 OA No.681 of 2016 ground(s) raised by the applicant in support of his defence had passed the speaking orders. The said authorities recorded the cogent reasons for their conclusions, that too, by following the principles of natural justice. As such we do not find any legal infirmities in the decision making process in the present case.
16. 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 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.
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] 38 OA No.681 of 2016 this Court held at SCR 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."
16.1 In another judgment rendered by the Three Judge Bench 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:-
"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 39 OA No.681 of 2016 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.
25. 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 40 OA No.681 of 2016 Article 136 of the Constitution would not interfere with the findings of fact arrived at in the 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."
16.2 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."
17. 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, we find that, undisputedly, (i) the departmental inquiry/disciplinary proceeding was held against the applicant by the competent authority; (ii) by following the principles of natural justice as well the procedure laid down in Rules 14, 15 and Rule 27 (consideration of appeal) of the CCS (CCA) Rules, 1965 the Disciplinary Authority and the Appellate Authority by assigning the 41 OA No.681 of 2016 cogent reasons for their finding & conclusion for imposing the penalty upon the applicant had passed the impugned orders dated 16.4.2015 (Annexure A/4) and 20.10.2015 (Annexure A/6) respectively. Thus, we do not find any procedural irregularities in decision making process while passing the impugned orders and the same are in consonance with the provisions of Rules 14, 15 and 27 of the Rules ibid. Hence, we decline to interfere with the impugned orders in the OA.
18. In the result, the present OA being devoid of merit, the same is accordingly dismissed. There shall be no order as to costs.
(Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
/ravi/