Central Administrative Tribunal - Ernakulam
K.S. Ravi vs Addl. Commissioner Of Central Excise ... on 12 February, 2004
Equivalent citations: 2005(3)SLJ86(CAT)
ORDER H.P. Das, Member (A)
1. The applicant presently working as Superintendent of Central Excise in the office of the Commissioner of Central Excise and Customs, Kozhikode had suffered disciplinary punishment arising out of his alleged misconduct as Air Customs Officer during 1996 at Trivandrum Airport. The applicant is seeking the quashing of the memorandum and orders leading to the imposition of penalty on him. The applicant in effect is seeking a review of the entire gamut of disciplinary process for arriving at a finding of unreasonableness on the part of the Disciplinary and Appellate Authorities. While in normal circumstances we would not be inclined to interfere in a disciplinary process carried out, at least prima facie, in legitimate discharge of disciplinary responsibilities entrusted to the various functionaries, here is a case where the locus of the proceedings on one part arises out of the complaint of an irate passenger and on the other part out of the Disciplinary Authority's disagreement with the Inquiring Authority who found the charged officer free of all charges of guilt.
2. Facts in outline are that a passenger Mr. Vidyodayakumar arrived at Trivandrum Airport from Abu Dhabi on 26.7.96 and reported to the Customs Counter manned by the applicant for clearance, at 7.40 a.m. The applicant, as the Air Customs Officer incharge of the Counter, had, according to him reasons for holding up the passenger's clearance in exercise of certain provisions of the Baggage Rules and finally on payment of duty on certain items the passenger was allowed to leave the Airport, which according to the passenger was at 9.30 a.m. The passenger complained of harassment caused by delay, in addition to that of misapplication of rules in regard to certain gold ornaments and a Camera which he had brought with him. He addressed a complaint to the first respondent and the first respondent ordered an enquiry to be conducted. The enquiry was duly conducted and Enquiry Officer found none of the six charges levelled against the applicant sustainable. But the Disciplinary Authority without assigning any reasons as to why he did not agree with the finding of the Enquiry Officer rejected the findings of the Enquiry Officer and imposed the penalty of reducing the applicant's pay by four stages from Rs. 7425/- to 6725/- in the Time Scale of Rs. 5500-175-9000 for a period of four years with effect from 1.7.98. It was also ordered that the applicant would not earn increment of pay during the period of reduction and that on the expiry of this period the reduction will have the effect of postponing his future increments for a period of four years. The applicant submitted an appeal to the second respondent i.e. the Commissioner of Central Excise and Customs mainly on the ground that the first respondent did not communicate as to why he disagreed with the findings of the enquiry report. The second respondent set aside the punishment order and directed the first respondent to decide the matter afresh after communicating the reasons for differing with the Inquiring Authority. The first respondent then issued a memo to the applicant on 24.3.99 communicating the grounds on which he disagreed with the orders of the Inquiring Authority and allowed the applicant to submit his objections if any, against the Disciplinary Authority's findings. The applicant submitted a reply and the first respondent finally issued an order on 30.7.1999 imposing the penalty of reduction of applicant's pay by three stages for a period of three years w.e.f. 1.7.98. Thus, in effect meant that the first respondent as Disciplinary Authority did not carry out the orders of the second respondent as the date of commencement of punishment remained 1.7.98 as was imposed by him. Since this was to be a fresh order its date of effect should have been prospective. It was further directed that the applicant would not earn increments of pay during the period of reduction and that on expiry of this period the reduction will have the effect of postponing his future increments of pay for a period of three years. The order of the Disciplinary Authority dated 30.7.99 which came more than a year after the first order of the Disciplinary Authority reduced the penalty marginally. The applicant then filed an appeal before the second respondent. The second respondent substantially modified the order to the extent that only one increment due to the applicant was to be withheld for a period of one year from 1.8.99 without cumulative effect. Not satisfied with this the applicant submitted a revision petition before the third respondent i.e. the Member, (P&V), CBEC, New Delhi. The revision petition was rejected by the third respondent on the ground that there was no basis to interfere with the appellate orders. In the meantime the applicant on completion of the period of punishment had been promoted as Superintendent of Central Excise.
3. The learned Counsel for the applicant pleaded first of all that none of the charges were proved in the enquiry and yet the Disciplinary Authority for reasons which were not entirely transparent differed from the Inquiring Authority's findings. Secondly, the second respondent as the Disciplinary Authority had not taken in to account the fact that the Air Customs Officer was not the Assessing Officer responsible for determining the duty leviable, it was the Superintendent who was responsible for that and hence any matter arising out of the application of duty would have to be necessarily with reference to that authority and not with reference to subordinate functionary who was merely discharging duties at the counter. Thirdly, the learned Counsel for the applicant contended, that the second and third respondents did not take into consideration this fact and hence the appellate and revisional orders were vitiated. Thus by relying on a chain of occasions and events the Disciplinary Authority, the Appellate Authority and the Revisional Authority had erred in imposing a penalty which was not warranted in the facts and circumstances of the case. The learned Counsel for the applicant went on to establish the grounds for the reliefs sought by arguing that in the first place there was no delay and if there was delay it was not attributable to the applicant. As such, fixing responsibility for delay in clearance on the applicant is illegal and arbitrary. He invited our attention to the enquiry proceedings in which the Superintendent had deposed that he was responsible for the assessment and levy of duty and he had also deposed that there was no delay in clearance. Since the Superintendent was the immediate supervisory officer and was in no manner implicated by the irate passenger there was apparently no reason for the Disciplinary Authority to disagree with the material evidence on this count. The learned Counsel also emphatically brought to our notice that there was no complaint of mala fide or corruption against the applicant. The complaint which was addressed by the passenger to the appropriate authorities after the event was that the applicant was "uncompromising." The Counsel sought to drive home the point that there was no issue of 'compromise' involved as procedures were to be applied strictly as was required and one cannot find fault with a Government Officer who was not 'compromising' in the application of rules. The Counsel further argued that apart from the Superintendent's statement that there was no delay, the available evidence on record showed that the last passenger of the flight exited at 8.40 a.m. and not at 9.15 a.m. as alleged by the passenger. That being the case, the entire process took about an hour assuming that the reporting time of the passenger at the Counter was at 7.40 a.m. is correct. The passenger's claim that he was the first one to arrive at the counter is not corroborated by evidence. The Counsel argued that by referring to the enquiry report that the passenger was in an agitated state of mind as he was returning from abroad to proceed to home with a new borne child and in all fairness was seeking an early clearance which he felt was obstructed by the official applying the rules meticulously much to the discomfort of the passenger. The Counsel made the point that the second respondent's decision as the Appellate Authority in reducing the penalty was a relief but a perusal of the appellate order would show that all the grounds advanced by the applicant were not considered by the Appellate Authority.
4. The learned Counsel cited the case of Begh Raj Singh v. Union of India and Ors. in which the Principal Bench of the Tribunal had held that an appellate order which summarily rejects all the grounds taken in appeal without assigning any reason is bad in law and cannot be sustained. The Counsel also cited another judgment of this Tribunal which had held that the word 'considered' means 'consideration of all grounds' raised in the appeal memorandum and not some of them. A technical point was made by the Counsel that the applicant was already a Superintendent w.e.f. 2.7.1999 and therefore Annexure-A7 order passed on 3.11.00 by the Appellate Authority withholding one increment w.e.f. 1.8.99 is not enforceable as the applicant had already been promoted to the rank of Superintendent w.e.f. 2.7.1999. Most importantly, the Counsel argued that there was no allegation of vested interest or motive on the part of the applicant in delaying the clearance.
5. It was the contention of the learned Counsel for the respondents that the primary duty of taking oral declaration of the contents of the baggage from the passenger is vested in the Air Customs Officer and the Superintendent only verifies the assessment done by the Air Customs Officer with reference to the rules in force and approves the Baggage Receipt for payment of duty. The Counsel contended that the records of the case showed that the applicant had been dealing with the passenger from the time he reported for clearance at the Customs Counter. It is he who had taken the declaration and had made a preliminary assessment of customs duty on the gold imported, on his own, without consulting the Superintendent. The subsequent reduction in duty was made at the intervention of the Superintendent taking into account the passenger's plea that he had exported seven gold sovereigns on his previous trip to Abu Dhabi. The learned Counsel for the respondents disputed the statement of the applicant that there was no delay in the clearance of the passenger. The Counsel also contended that the passenger had reported at the Customs Counter at 7.40 a.m. and could leave the baggage hall after the Customs clearance only at 9.15 a.m. Even assuming that it was 8.35 a.m. provided the record kept at the exit is correct, it was the Counsel's argument that one hour delay cannot be justified as the dispute was only regarding the dutiability of 135 gms of gold under importation. The delay according to the respondents was solely attributable to the applicant inasmuch as he had tried to tackle the situation himself without bringing it to the notice of the supervisory officer immediately. As to the question why the Superintendent should not be held responsible for delay, the Counsel felt that since no case has been made out against the Superintendent it would not be justified to bring in the supervisory jurisdiction of the Superintendent into question. Responding to Para 4(11) of the original application which related to the Hand Book for Air Customs Officers, the Counsel for the respondents contended that it was a Hand Book issued by the Commissioner of Customs Bombay Air Port and was at best for guidance and not for compulsory observance in the Airports in Kerala. Dwelling at some length on the rejection of grounds in the O.A. the Counsel for respondents repeatedly brought to our notice that the Appellate Authority had considered all the points raised in the appeal and in exercise of appellate jurisdiction had decided that the officer be exonerated of the charges made under Articles III and IV of the memorandum of charges as these stood unproved. It was therefore not correct, according to him, to contend that the Appellate Authorities did not exercise the judgment that was expected in regard to the decision while considering the appeal and the revision petition. It was the contention of the learned Counsel for the respondents that the Appellate Authority and the Revisional Authorities exercised separate jurisdictions and the matters of their remit are also distinguishable. Therefore it cannot be said that the Revisional Authority did not exercise necessary judgment in agreeing with the Appellate Authority and rejecting the revision petition. Observing on the date of promotion of the applicant to the next higher grade w.e.f. 2.7.99 he contended that it was the notional dated from which seniority was fixed and it was not the actual date of promotion for the purpose of financial benefits. Referring to the instant case the Counsel highlighted the applicant's high-handed behaviour misusing his official position and lack of knowledge of prevailing rules which resulted in the unnecessary delay in the clearance of the passenger. He also argued that the applicant took upon himself the responsibility of handling the situation without bringing the matter to the notice of the Superintendent. The fact that substantial subsequent reduction was made by the Superintendent in the assessment of duty could also prove, according to the learned Counsel for the respondents, that the applicant failed to bring into his task the quality of knowledge and judgment expected.
6. We have heard both the Counsels keeping in view all along a particular matter which is of core importance in this case. That matter of core importance is whether the conduct of the applicant in the discharge of his official duties at the counter in any manner overstepped the limits of delegation and if so whether it was such that would attract the punishment awarded. We consider it necessary to restate the core issues for evaluation. Firstly, the nature of misconduct. Secondly, the justification for punishment and thirdly, the role of the Disciplinary, Appellate and Revisional Authorities in the ambit of due diligence.
7. In regard to the first issue it is established beyond reasonable doubt that no single officer, if he is being supervised, can perpetrate an act of harassment or misdemeanor with respect to a bona fide passenger with a fair understanding of the clearance procedure. It would be improper and incorrect to isolate a single officer at the counter when a battery of officers supervised by Superintendents are operating and both supervision and counselling are available on the spot. It is quite possible that a particular officer can turn over enthusiastic in applying the rules but that cannot be held against him as long as the officer does not misbehave with the passenger. Mere delay in clearance cannot be held as an act of misbehaviour. The respondents have come to the conclusion of misbehaviour merely on the basis of the compliant by the passenger. They have failed to note the point that during enquiry no instance of use of abusive expression, aggressive gesture, mala fide or corruption was alluded to. In regard to the officer not possessing the required knowledge in handling the issue at hand it has to be conceded that there can be a bona fide misapplication. The very fact that in the instant case we could locate three separate interpretations of the scope of application of the relevant baggage rule points at that preponderant probability. Taking the instance of gold brought by the passenger with him, the passenger was relying on his earlier information. That in the meantime the rules had been changed and he might become liable to duty could have and it did, come in the way of instant clearance. The relevant section under which the matter should have been handled and settled is the opinion of the Disciplinary Authority. On the spot an over-jealous view cannot perhaps be ruled out. Similarly in regard to the camera and the entry in the old passport, these are matters that show no substantial misapplication and perhaps cannot be held against an officer. In any case the grounds on which the Disciplinary Authority rejected the findings of the Inquiring Authority are not quite transparent. A degree of opacity arises first of all from the fact that the Air Customs Officer was held responsible for the lapse ignoring the role of the supervisory office. The second opacity and perhaps the most crucial one arises out of the conclusion of disagreement with the Inquiring Authority without a speaking order. As a matter of fact the first order itself is not on record. We are unable to evaluate the quality of application of mind at that stage in the absence of such a record. Be that as may, even the later actions of the first respondent are not entirely justified. The refutation of the findings of the Enquiry Officer by the Disciplinary Authority is bedevilled by a number of significant lapses. The first lapse is that the Disciplinary Authority refused to give credence to the evaluation of the circumstances by the Enquiry Officer. The Enquiry Officer in his report had dealt with all the charges and had rejected all of them for lack of evidence. If the Disciplinary Authority felt that such a finding was not justified on the basis of the material evidence on record or available otherwise then he should have stated those categorically. It is not difficult to see that the first respondent might have given a preconceived notion that the applicant was deviant or he might have placed a very high degree of reliance on the passenger's complaint. This is not a very happy position to take, particularly when the evidence relied upon are unsecured by the sequence of legalities involved in the process.
8. In the interest of justice, in particular because the entire gamut of the disciplinary process is in question we would like to take a comparative view of the judgments exercised in respect of the articles of charges.
9. The first charge related to undue delay. The Enquiry Officer had observed: "Though some delay has occurred it could not be conclusively attributed as to have occurred on account of the alleged harassment of the charged officer pr that the delay has been intentionally caused in order to put the complainant and family in a precarious situation." The Enquiry Officer for arriving at this conclusion has relied upon firstly the lack of evidence in regard to the exact time of departure of the passenger and a mental calculation of time that clearance would take given the peculiar circumstances of the case. The Disciplinary Authority in his memorandum dated 24.3.99 seems to have relied entirely on the documents kept at the exit. He has also relied entirely on the statement of the passenger that the Bank transaction took barely five minutes. The Disciplinary Authority has not taken into account the fact that a passenger's complaint in itself unrelated to the events that followed would have no credence. Further in a disciplinary case a complaint could be the origin of enquiry but it could not be the sole basis on which a judgment could be arrived at. If it is the intention of the Disciplinary Authority to drive home the point that the delay at the Customs Counter was due to application of incorrect rules and procedures which led to consequential delay then that would not hold water because a conscientious Govt. officer discharging his duties could sometimes create inconvenience for a passenger by being over-meticulous. What then is required to be corrected is the skill of management and not the procedure. Apparently the applicant had performed his duty as per his knowledge of the procedures. The supervisory officer brought the duty down subsequently by applying superior judgment that he had. At no point of time it has been stated that the duty was levied with any motive or intention to extract any financial benefit from the passenger. The Appellate Authority has not considered the representation of the applicant article by article. In Para 5 of the order in appeal the authority does not appear to have been convinced of the charge of delay at Customs Counter. The authority has discounted the time chart submitted by the applicant regarding the time taken for clearance of the passenger but she has trusted the statement of the passenger. It is understandable that as the head of the department she is keen to avoid resentment in the minds of passengers particularly international passengers and is expecting that a counter officer should be polite to the passenger. But she should have remembered that she was disposing off an appeal where a charged employee was refuting the allegations made against him and no appellate order would ever have the semblance of reliability unless passed on a fair evaluation of evidences. Here is a case that rests entirely on lack of evidence and hence the Appellate Authority should have at least taken the circumstantial facts into consideration and should have brought a degree of application of mind into the evaluation of non-evidences that were presented to her. The order in revision passed on 31.5.2001 by Member (P&V) CBEC, New Delhi also contains no evaluation of the points raised in the revision petition. He only makes a statement that "Shri Ravi could not handle the situation in a polite and considerate manner as a result of which the passenger has not only made a complaint, but also followed up the same from abroad." He has relied almost entirely on the judgment of the Appellate Authority not so much because of the range of application of mind in the appellate order but because 'the Appellate Authority had the full authority to modify the penalty imposed by the Disciplinary Authority'. Incidentally the revision petition was not directed against the modification carried out by the Appellate Authority as the Appellate Authority had in fact reduced the penalty. The revision petition was directed at the modified penalty itself which according to the applicant was misplaced. In regard to the misdemeanor of the applicant the authority who considered the revision petition has only stated that the misdemeanor has been proved in the proceedings and that the relief given by the Appellate Authority was adequate. In fact misdemeanor has not been proved at any stage in the proceedings. A misdemeanor or an act of misdemeanor cannot be extraneous to the circumstances nor can it be an impression or a conjuncture. It has to satisfy at least the basic criterion of 'inappropriateness' in order to make it fall in the ambit of the disciplinary proceedings that followed. There is no evidence of misdemeanor, there is no evidence of a demand of illegal gratification, there is no evidence of personal abuse and there is no evidence of motivated harassment. If at all, there is only some evidence of delay which is vicarious. How did the Air Customs Officer at Counter No. 10 take so much of time to interpret the rules and explain those to the passenger or even incorrectly apply those leading to altercation and delay are matters on which no one who has not been a witness to the event can visualise. The witnesses included the complaint and the Superintendent. There were of course other officers present, but none has been brought in as witness.
10. The second charge relates to ignoring the request of the passenger to enter the details of the jewellery in the Passport and allow the re-export of the jewellery. Here the fault on the part of the charged officer has been identified as 'exceeding his authority' that caused harassment to the complainant and his family. The Enquiry Officer has categorically stated that the decision to impose duty on 70 gms of gold instead on 19 gms was taken by the Superintendent and not by the charged official and hence the charge was not established. The Disciplinary Authority in dealing with the matter in his memo and in his order has found fault with the Enquiry Officer for not examining the very durability of the jewellery in question. This cannot be considered to be a fair ground of disagreement as the point for consideration is not the correctness of the decision, but the onus. Since it was factually established that the assessment was done by the Superintendent and not by the charged officer, the onus would not lie with the charged official. If there was a misapplication of rules the Superintendent as the Assessing Authority was responsible and not the charged officer. The Appellate Authority has also failed to note the point made by the Inquiring Authority and found the charged official guilty of not having brought the matter to the notice of the Assistant Commissioner. This is not fair as the next higher authority being the Superintendent who made the assessment the charged officer could not be required to bring the matter to the notice of the Assistant Commissioner on his own, by passing the Superintendent. The order in revision does not contain any view on this matter excepting a brief reference to the fact. In regard to this charge too we find the basic issue has been lost sight of in the proceedings that followed the inquiry and the official has been held guilty for misapplication of rule despite the fact that the decision was taken by his superior.
11. Articles III, IV and V of the statement of charges relate to import of a Camera by making an endorsement in the cancelled Passport when the new valid Passport was available. Incidentally the charge itself contains a statement that the procedure for making entries in the Passport was done away with the supersession of Tourist Baggage Rules, 1978 by the Baggage Rules, 1984. This itself implies that no entry was required to be made in the Passport whether new or old. If that is so, the entry made by the charged official in the old Passport was evidently of no consequence. The Enquiry Officer had observed that the intention of making the entry in the old Passport cannot also appear to have been made other than with the intention of cancelling the re-export entry made therein. He had also observed that the cancelled Passport was sealed and tagged to the new Passport and the possibility of allowing the import of the Camera without duty appeared remote as the import and export details were seen to have been made in page 20 of the old Passport. The Disciplinary Authority observed on the unauthorised endorsement that there was no need for any endorsement of an old Camera without stating whether such an endorsement had any significance. If an endorsement in an earlier Passport had no consequence then it was superfluous, more particularly in the light of the fact that the practice of endorsement was no longer followed after the new Baggage Rules were introduced. The order in revision points out that the endorsement made in the cancelled Passport was not countersigned by the Superintendent. The order in revision should have considered this matter in the light of the position that such an endorsement in any case was visited with no consequence. If it is the intention to prove that the charged officer was using a non-existing provision for harassing a passenger then there should have been a motive. No motive was alluded to. Superfluity of the endorsement has also not been examined in relation to the alleged act of guilt.
12. Article VI of the charge relates to careless documentation. It was alleged that the Passport Number shown in the Baggage receipt was P 310132 while it should have been P 310162. The Enquiry Officer had found that the mistake was of clerical nature and it had no impact on revenue accounting. He had also categorically stated that this mistake could not be noted by the passenger, the Superintendent and the Bank official, all of whom signed it. He had also concluded that for this minor clerical mistake the officer could not be charged of failure to maintain devotion to duty. The Disciplinary Authority in disagreeing with the observations of the Enquiry Officer has concluded that the Enquiry Officer had failed to appreciate the contingency that the passenger would be inconvenienced when he preferred a refund claim. This is hypothetical and we would say highly presumptive considering the fact that the mistake in documentation was not a very serious mistake, or else it would have been detected by all concerned who signed it. Assuming that the passenger would have been inconvenienced, that is no reason to bring to question the conduct of a Government servant who could have committed a bona fide mistake. The order in revision does not refer to this point.
13. Our purpose in giving a comparative evaluation of the orders at different stages is that we wanted to show how the disciplinary process had missed substance or form. Even good form cannot rescue bad judgment.
14. The applicant has prayed for the quashing of A1 which consists the memorandum of charges along with statement of charges (10.10.96), A3 dated 24.3.99 which contains a communication addressed by the Disciplinary Authority to the applicant, A5 dated 30.7.1999 which is the disciplinary order, A7 dated 3.11.2000 which is the order in Appeal and A9 dated 31.5.2001 which is the order in Revision. Quashing of these orders enbloc would imply that no charge was ever framed against the applicant and no subsequent processes were undergone as a consequence of that. The prayer of the applicant would have to be seen in the light of the sequence of the orders sought to be quashed. Even though the penalty was imposed on 1.7.98 the Appellate Authority modified the order w.e.f. 1.8.99 while issuing the orders on 3.11.2000. This means that at the point of time the appellate order was passed the period of the punishment had already been run through as the applicant has stated that he had been, by that time, already promoted as Superintendent. The only consequence of the quashing of these orders would now be that the Officer's promotion to the next higher rank would take effect from the date his junior was promoted. We are also surprised to find that the officer underwent the punishment when the disciplinary process was in progress. Normally when the appeal is filed the disciplinary order is held in abeyance until final disposal of the appeal.
15. We do not question the powers of the Disciplinary Authority to order an inquiry against the conduct of an officer against whom an allegation has been made. Thus A1 cannot be quashed. But when the charges are found not proved by the Inquiry Officer, any subsequent steps taken by the Disciplinary Authority or the Appellate Authority without visiting the grounds on which the evidence have been evaluated by the Inquiry Officer, would be steps in a void. In this case therefore Annexures-A3, A5, A7 and A9 are quashed on the ground of considering inadequate application of mind on the part of the Disciplinary Authority, Appellate Authority and Revisional Authority. The enquiry in to the alleged misconduct on the part of the officer would be treated as completed with the report of the Inquiry Officer which found the official not guilty. The termination of the enquiry with the inquiry report would entitle the applicant to all consequential benefits that would be due to him but for the prolongation of the disciplinary process. He may therefore be given all the consequential benefits within a period of two months from the date of receipt of this order including the benefit of promotion with attendant financial benefits. No order as to costs.