Madras High Court
Union Of India (Uoi), Rep. By The ... vs Ravindra Kumar And Anr. on 3 February, 2005
Equivalent citations: 2005(2)CTC84, (2005)2MLJ1
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. By consent of both parties, the main writ petition itself is taken up for disposal.
2. Aggrieved by the order of the Central Administrative Tribunal, Chennai Bench dated 22.07.2004 made in O.A.No. 1081 of 2003, Central Board of Excise and Customs, Ministry of Finance, Department of Revenue, New Delhi and the Commissioner of Customs, Chennai-1, have preferred the above writ petition to quash the said order on various grounds.
3. The first respondent herein, namely, Ravindrakumar, an Appraiser in Custom House, Chennai-1, challenged the cancellation of his promotion order dated 13.12.2002 before the Central Administrative Tribunal-second respondent herein in O.A.No. 1081 of 2003. The Tribunal, by its order dated 22.7.2004, allowed the said Original Application by quashing the impugned order dated 13.12.2002 and directed the writ petitioners to implement the order No. 206/02 dated 10.12.2002 and also directed them to consider the service of the first respondent herein as Assistant Commissioner of Customs and Central Excise on ad hoc basis from 16.12.2002. Aggrieved by the said order, the present writ petition is preferred.
4. The brief facts which are required for the disposal of the above writ petition alone are stated hereunder:
K. Ravindrakumar, first respondent herein joined the service on 10.7.1992 as an Appraiser. On 13.4.1998, he was transferred from Chennai Custom House to Custom House, Jaipur. During 1998, he allowed the export of consignments of over invoiced, low quality garments in the name of M/s. Glowbus Office Equipments (P) Limited involving duty drawback. Ten shipping bills from S.No. 000013 to 000022 dated 3.9.1998 were filed by C.M. Chauhan in the name of M/s. Glowbus Office Equipments (P) Ltd., at ICD, Udaipur before the first respondent, falsely showing the export of readymade garments with an exorbitant value of Rs. 2,71,14,300 being exported to M/s. M. Trade Middle East Trading, Dubai, U.A.E., with dishonest and fraudulent intention to claim and receive duty drawback amounting to Rs. 46,09,431.00. The above shipping bills were entertained by the first respondent for further processing and he put his signature dated 3.9.1998 on each shipping bill referred to above while making entry in the Export Register. During the course of examination it was detected that poor quality of garments (some of the goods were old and used; most of the clothes were unfit for human wearing and also not fit for export) by highly over invoicing were being exported, and he unauthorisedly allowed the export. In the export documents, the cost of each garment has been shown as about Rs. 500, whereas as per the opinion of experts the cost of each garment ranged between "no commercial value to Rs. 40 per piece"; total cost has been shown as Rs. 2,71,14,300, whereas according to the experts, the total cost would not exceed Rs. 2,28,350. This fraudulent export involved duty drawback amounting to Rs. 46,09,431 in the name of M/s. Glowbus Office Equipments (P) Ltd. The materials show that the first respondent was constantly in touch with the other accused persons. There was neither export order, nor LC was opened and these were ignored by the first respondent while allowing export. First Information Report was registered against him and others on 22.2.1999 by CBI. He was transferred back to Chennai in July, 1999. The first respondent was suspended on 4.8.1999 by the Commissioner of Customs, Chennai. Due to procedural delay in filing charge sheet by CBI, the suspension order of the first respondent was revoked on 12.7.2000.
5. The sanction for prosecution against the first respondent was accorded by the Commissioner of Customs, Chennai on 17.6.2002. The charge sheet against the first respondent and others was filed on 19.8.2002 in the Court of Special Judge, CBI cases, Jodhpur (Rajasthan). On 4.2.2003, a charge memo dated 21.1.2003 for initiation of disciplinary proceedings was served on the first respondent. On 17.3.2003, he sent a reply, requesting to postpone the disciplinary proceedings till the criminal proceeding is completed. An Enquiry Officer was appointed by order dated 25.12.2003 and preliminary enquiry was held on 16.2.2004 and adjourned thereafter. From 3.4.2004 to 8.6.2004, proceeding could not be conducted, since the Enquiry Officer was posted as Election Observer.
6. In the meanwhile, the Deputy Secretary to Government of India, Department of Revenue, Central Board of Excise and Customs, issued promotion order No. 206/2002 dated 10.12.2002 on ad hoc basis for 171 persons including the first respondent to officiate in the grade of Assistant Commissioner of Customs and Excise. However, immediately the second petitioner herein was informed about the prosecution pending against the first respondent and also about the charge sheet filed by CBI against the first respondent. Hence the first respondent was not relieved to go to the new place of posting on promotion, since he was not eligible. Since the charge against the first respondent was grave enough, the order of promotion was cancelled on 13.12.2002. Since the order dated 10.12.2002 is a self explanatory one, no notice or personal hearing was necessary and hence, the ad hoc promotion was cancelled. The order dated 13.12.2002, cancelling his promotion was challenged in O.A.No. 1081 of 2003. The Tribunal, by the order under challenge, after holding that the impugned order is not a speaking order and no reasoning is assigned, quashed the same and issued direction to the petitioners herein to implement their own order No. 206/2002 dated 10.12.2002 and also directed them to consider the service of the applicant as Assistant Commissioner of Central Excise on ad hoc basis from 16.12.2002. Questioning the same, the Department has filed the above writ petition.
7. Heard Mr. V.T. Gopalan, learned Additional Solicitor General for the petitioners and Mr. R. Thiyagarajan, learned Senior Counsel for the first respondent.
8. The only point for consideration in this writ petition is, whether the order of the Central Administrative Tribunal dated 22.7.2004 quashing the order dated 13.12.2002 only on the ground that the same is not a speaking order, without assigning any reason violates the principles of natural justice, since no notice and personal hearing was afforded to the first respondent ?
9. Inasmuch as we have already referred to the factual details in the earlier part of our order, there is no need to refer the same once again. We are concerned with two orders, namely, Office Order No. 206/2002 dated 10.12.2002 and Office Order No. 207/2002 dated 13.12.2002 of the Government of India, Ministry of Finance and Government Affairs, Department of Revenue, Central Board of Excise and Customs. It is not in dispute that in the order dated 10.12.2002, the Officers in the grade of Custom Appraisers, Superintendents of Customs and Superintendents of Central Excise, whose names mentioned in Annexure I, II and III respectively were promoted on purely ad hoc basis to officiate in the grade of Assistant Commissioner of Customs and Central Excise in the pay scale of Rs. 8000-275-13500 with effect from the date they assume charge of the higher post and until further orders. Para 2 of the said order specifically states that the promotion to the grade of Assistant Commissioner of Customs and Central Excise is made purely on ad hoc basis for a limited period of six months. It further states that the above promotion does not confer on the officers so promoted any right to claim continued officiation in the grade of Assistant Commissioner and the period of such service will not count for seniority or as qualifying service for further promotions. In para 3 also it is specifically stated, "However the concerned Commissionerates should ensure that no Officer in the promotion list is relieved if he is under suspension or facing any charge sheet or prosecution and report this fact to the Board immediately. ..." Serial No. 161 in Annexure I of the said order relates to the first respondent herein.
10. By the second Office Order No. 207/2002 dated 13.12.2002, the very same Department issued posting/transfer of the Officers mentioned in the said Annexure. In the said order, in Clause (6) it is stated, "The promotion and posting orders of Shri. A. Kannappan, Shri. R.B. Balani and Shri Ravindrakumar (D.O.B. 10.12.1964) may be treated as cancelled". This order was challenged in O.A.No. 1081 of 2003 by the first respondent herein. The Tribunal, accepting the case of the applicant therein, by applying the principles laid down in the case of State of Andhra Pradesh v. N. Radhakrishnan, , holding that the Department/Officers have not followed the procedure while passing the order dated 13.12.2002, cancelling the order of promotion in respect of three persons' including the applicant therein, allowed his application and set aside the order of cancellation dated 13.12.2002.
11. Mr. V.T. Gopalan, learned Additional Solicitor General, would submit that the Tribunal has misapplied the decision in Radhakrishnan's case, and inasmuch as the charge sheet in criminal case has been filed even on 19.8.2002, there is no delay in the prosecution; accordingly, the Tribunal is not correct in setting aside the order of cancellation by misconstruing the above decision. By relying on the case of Aligarh Muslim University v. Mansoor Ali Khan, , he contended that in the light of the conditions imposed in the order of adhoc promotion dated 10.12.2002 (vide para 3 of the said order), there is no need to issue a notice or afford personal hearing as observed by the Tribunal.
12. On the other hand, Mr. R. Thiayagarajan, learned Senior Counsel for the first respondent after taking us through various correspondence and conclusion of the Department Heads would submit that in the light of the conclusion of the Tribunal, namely that there, is no material against the first respondent, the cancellation of promotion order dated 13.12.2002, without assigning any reason and affording opportunity cannot be sustained.
13. The procedure for ad hoc promotion as per the Service Rules applicable to the first respondent is as follows:
"Procedure for ad hoc promotion:
17.8.1 In spite of the six monthly review referred to in para.17.7.1 above, there may be some cases where the disciplinary case/criminal prosecution against the Government servant are not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad hoc promotion keeping in view the following aspects:
(a) Whether the promotion of the officer will be against public interest;
(b) Whether the charges are grave enough to warrant continued denial of promotion;
(c) Whether there is no likelihood of the case coming to a conclusion in the near future;
(d) Whether the delay in the finalisation of proceedings, departmental or in a Court of Law, is not directly or indirectly attributable to the Government servant concerned; and
(e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau......"
14. In the light of the above procedure, we have to see the promotion order (vide OFFICE ORDER No. 206/2002 dated 10.12.2002). We have already referred to the fact that the said order specifically states that this promotion to the post of Assistant Commissioner of Customs and Central Excise is purely on adhoc basis that too for a period of six months and the same does not confer any right to claim for promotion and it will not count for seniority as a qualifying service. We have also extracted Clause (3) of the said order, which makes it clear that if any Officer is under suspension or facing any charge sheet or prosecution, he shall not be relieved to join the promotion post.
15. It is the case of the Department that FIR was registered against the first respondent and others on 22.2.1999 by the CBI. Though the first respondent was suspended on 4.8.1999, because of the delay in filing the charge sheet by CBI, the suspension order was revoked on 12.7.2000 and meanwhile he was transferred back to Chennai. However, after getting sanction for prosecution, charge sheet against the first respondent and others was filed on 19.8.2002 in the Court of Special Judge, CBI cases, Jodhpur. This is prior to Office Order for promotion dated 10.12.2002. It is further seen that on 4.2.2003, a charge memo dated 21.1.2003 for initiation of disciplinary proceeding was served on the first respondent. It is also seen that though an Enquiry Officer was appointed by order dated 25.12.2003, on subsequent dates, the enquiry was not held since the Enquiry Officer was posted as Election Observer and mostly he was out of station and because of the said reason the Department enquiry is pending. The reason for not concluding the enquiry has been specifically stated by the Department before the Tribunal as well as in this Court. In N. Radhakrishnan case, , the Supreme Court has held that the delinquent employee has a right to see that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when the proceedings are unnecessarily prolonged without any fault on his part in delaying the proceedings. It is further held that if the delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting disciplinary proceedings. In the case on hand we have referred to the reasons for delay in not concluding the enquiry before the Tribunal as well as in this Court. On going through those details and of the fact that the charge leveled against the first respondent herein is grave and in view of the factual position in the case of N. Radhakrishnan, , before the Supreme Court, we are of the view that the principle laid down is not applicable to the case on hand.
16. Now, coming to the second order dated 13.12.2002 and of the fact that the same was passed without notice and affording opportunity to the first respondent herein, the learned Additional Solicitor General by heavily relying on the recent decision of the Supreme Court in the case of Aligarh Muslim University, , would contend that in the light of any disputable factual position, namely pendency of grave charge, the claim that the principles of natural justice have been violated is not applicable. In the said decision, their Lordships after referring two exceptions laid down in S.L. Kapoor's case, , after holding that no prejudice has been caused to the petitioner for want of notice under Rule 5(8)(i) of the Aligarh Muslim University Revised Leave Rules, 1969, allowed the appeal filed by the Aligarh Muslim University. Para 23 of the said judgment is very relevant, which reads as under:
"23. Chinnappa Reddy, J. In S.L. Kapoor case laid down two exceptions (at SCC p.395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words, if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception."
17. It is brought before the Tribunal as well as before this Court that the charge sheet against the first respondent in the criminal case was laid on 19.8.2002 in the Court of Special Judge, CBI, Jodhpur under Section 120B read with Sections 420, 511, IPC and Section 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988. It is also brought to our notice that the Scheme contemplates that if proceedings are delayed for more than 2 years, then, there shall be a review of the case of Government servant, provided he is not under suspension, to consider the desirability of giving him ad hoc promotion. It is the case of the Department that on the date of consideration for promotion, criminal proceedings were pending against the first respondent. As rightly argued by the learned Additional Solicitor General, the Tribunal has failed to consider that the Office Order No. 206/2002 wherein ad hoc promotion was ordered by Department of Central Excise and Customs dated 10.12.2002, has directed the concerned Commissionerate to ensure that no officer in the promotion list should be relieved facing charge sheet or prosecution and report this fact to the Board immediately. It is also the claim of the Department that the Board was not aware of the charge sheet and the case pending on the file of Special Judge, CBI, Jodhpur against the first respondent. It is the specific case of the Department that when the pendency of the criminal case was brought to the notice of the Board, it cancelled the earlier order of ad hoc promotion to the first respondent.
18. On going through those details, we are satisfied that the said decision is in accordance with the scheme for ad hoc promotion, which we have already referred to. A perusal of the scheme also shows that the said scheme empowers the appointing authority to consider its desirability of giving ad hoc promotion keeping in view of several aspects, which includes (a) whether promotion of the officer will be against public interest; (b) whether the charges are grave enough to warrant continued denial of promotion. The procedure also contemplates that the appointing authority should consult the CBI and take their views into account where the Departmental proceedings and criminal prosecution arose out of prosecution by them. As said earlier, in our case, the ad hoc promotion was ordered on 10.12.2002 by the Central Board of Excise and Customs and coming to know that serious charges that were pending against the first respondent, the said promotion order was cancelled immediately on 13.12.2002. It was also pointed out before the Tribunal as well as before this Court that the promotion order dated 10.12.2002 was not acted upon and the first respondent herein did not assume office as Assistant Commissioner of Central Excise and therefore the order dated 10.12.2002 did not confer him any right. Even in N. Radhkrishnan case, the Supreme Court has observed that the balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee. It has to be noted that the first respondent has involved in an offence under Section 120-B, IPC and according to the Department, the value of the fraudulent export duty drawback amounts to Rs. 46,09,431.
19. It is also explained in the affidavit by the Department that the sanction for prosecution was accorded by the Commissioner of Customs on 7.6.2002 and subsequently on 19.8.2002 charge sheet was filed against the first respondent in the Court of Special Judge, CBI, Jodhpur by the Superintendent of Police of CBI. Considering all these aspects and the conditions imposed in the office order No. 206/2002 dated 10.12.2002 as well as the principles laid down in the case of Aligarh Muslim University , we find that there is no illegality in cancelling the promotion order dated 10.12.2002. We are also satisfied that the materials placed clearly show that the Department proceedings and the criminal proceedings were pending as on the date of Board's order dated 10.12.2002, promoting the first respondent as Assistant Commissioner of Customs on ad hoc basis. With the materials placed, we are satisfied that on coming to know about the Departmental as well as criminal proceedings, the conditional ad hoc promotion dated 10.12.2002 was cancelled on 13.12.2002, the relevant materials/aspects have not been properly considered by the Tribunal and it has erred in interfering with the order of the competent authority.
Under these circumstances, the order of the Central Administrative Tribunal dated 22.7.2004 made in O.A.No. 1081 of 2003, is quashed and the writ petition is allowed. No costs. Consequently, connected WPMP, is closed.