Central Administrative Tribunal - Ahmedabad
Yogesh Ochhavlal Shah vs Union Of India (Uoi) And Ors. on 11 October, 2006
Equivalent citations: 2007(2)SLJ90(CAT)
ORDER Shankar Prasad, Member (A)
1. Aggrieved by the disagreement note dated 14.2.2006 issued by the Disciplinary Authority the applicant has preferred the present O.A. He has sought for the quashing of the same.
2. The facts lie in a narrow compass. The applicant was issued a major penalty charge sheet dated 30.4.02. The applicant submitted his detailed reply dated 27.5.2002 to the charge sheet (running into 20 pages) along with his letter dated 27.5.2002. This reply amongst other indicates that when he was busy participating in the National Shooting Championship, his A.C. Shri. K.M. Ramchandran had written a confidential D.O. in April 1998 to DC (H.Qrs.) Shri. S.K. Panda to transfer him. The Commissioner after seeing his previous records including seizures affected, allowed him to complete his tenure. He has also referred to incident regarding his being asked to take over charge of Customs Office Paldi from M.M. Parekh on 22.5.98 when the successor S.B. Chauhan was to join on 25.5.98, and that he signed both the taking over/making over report without seeing a single godown item. Shri K.M. Ramchandran, the AC, had also assaulted Sepoy Girish Sumeshra and PRO on duty on 27.5.98 on flimsy reason. When the Commissioner asked for a true version the same was given and the said AC was transferred. He refers to another incident involving him and the said AC on 8.6.98. After his transfer to Surat in October 1998 he was asked to conduct an enquiry into the missing gold residues. Shri Harshad Makwana wrote his statement in Hindi on 2.11.98 that he had found it near cycle parking on 7.5.98 and gave it to AC Mr. Makwana also produced the second missing gold residue in presence of vigilance officials on 3.11.98. Mr. M.M. Parekh had not transferred these gold residues inspite of the directions in Inspection note.
He has given his version of incidents regarding the complaint made by Rajubhai Jagiasi and Kanaiyalal Navlani. He had referred to his earlier representation dated 15.6.99 (which is in connection with gold residue case) and representation dated 7.1.99 (in connection with complaint of Rajubhai Jagiasi & Others) and representation dated 9.11.2001 and requested for dropping of charge sheet. The forwarding letter dated 27.5.2001 states as under:
S/Shri Rajubhai Jagiasi and Kanaiyalal Navlani both of Vadodara, are the complainants who have tried to implicate me as I had booked cases against them and their carriers at the SVP International Airport, Ahmedabad when I was working as Supdt. AIU at the Airport. Further the other persons who have given their evidence in support of the complaint is brought on record through the statements of the complainants, Shri Haroonbhai and Shri Narendra N. Dave who were also smuggling goods through Ahmedabad Airport against whose carriers I had booked ITC cases at Ahmedabad. Thus, the persons who were smuggling goods have tried to falsely implicate me by this complaint and giving false evidences and including audio cassette containing fabricated telephonic conversation. Shri P.C. Jain, the then A.C., who had carried out fact finding inquiry, has also acted prejudicially against me in connivance with the complaints as he also stays in the same area where the complainants reside in Vadodara for the last 10 years and having friendly relations with the complainants. I may also point out that Shri P.C. Jain, A.C., is also facing vigilance actions on allegations from the various CHA of Alang, Bhavnagar and his wife. Shri P.C. Jain was already prejudiced against me in past and had threatened to spoil my ACR and has conveniently grabbed the opportunity to take false and fabricated evidence against me in connivance with the complainants and their friends. Thus, I am bringing to ' your kind notice that the charges framed are totally baseless and the so-called evidences brought on record are not at all correct and reliable.
3. Shri Sunil Jani, D.C. (Excise) was appointed as the Enquiry Officer. Later on Shri Dhirendra Lal, D.C. (Service Tax) was appointed as the Enquiry Officer. The Enquiry Officer in his report dated 9.11.04 (page 53-76 of O.A.) has held as under in respect of Article I of the charges.
28. In order to find out the exact reasons under which Shri Makwana took the responsibility of theft of the said gold biscuits, Shri Makwana has been given ample opportunities, and was asked to remain present in the inquiry proceedings on 4.3.03, 4.4.03 and 4.9.03 but he did not turn up for giving his oral evidence in the case.
29. Under the above discussions and findings, I conclude that the gold biscuits were not physically available in the Customs godown on the material period i.e., from 22.6.98 to 30.10.98 and were stolen by Shri Harshad Makwana on 7.5.98 and as such the in charge godown officer cannot be held responsible for keeping already missing article in safe custody. Thus, the charges levelled against Shri Y.O. Shah, Superintendent vide Article I of Annexures-I and II to the Memorandum dated 30.4.2000 are not substantiated on record. Negligence on part of both officers regarding handing over and taking over is not subject matter of this inquiry.
The Enquiry Officer has observed in Para 34 that Shri Sadhu had made a statement dated 30.11.98 before A.C. (Vigilance) which was retracted by him on 11.1.99. He stood by the later statement in his examination/cross examination. He held that the benefit of doubt goes in favour of charged official till revised version is proved otherwise. He noted in Para 35 that Haroonbhai Malani, Tulsiram Raval and Pratapji Prajapati, who allegedly participated and played important role in alleged collection and delivery of amount in question did not appear for tendering evidence. The contradictions in versions given by Rajubhai Jagyansi, Kanaiyalal Navlani and Narendra Dani on different occasions is noted in Para 37. It was held in Para 39 that audio and video cassette do not prove the involvement. He finally held:
40. The Presenting Officer was also not able to justify the above said irregularities and sufficiently substantiate the charges framed against Shri Y.O. Shah, Superintendent. In light of the above discussions and findings and in absence of corroborative and convincing evidences, I find that the charges levelled against Shri Y.O. Shah, Superintendent vide Article-II of Annexures-I and II to the Memorandum dated 30.4.2002 are not substantiated.
4. Commissioner Central Excise II cum Disciplinary Authority in his 6 page proposal dated 8.4.05 to DG (Vig.) came to the conclusion that charges are not proved and asked for second stage advice. There were some more correspondence. The advice given by DG (Vig.) to CVC is not on record. CVCs second stage advice is as under:
3. In respect of Shri Y.O. Shah, Supdt., the Commission has observed that there was gross negligence on his part when posted at Airport in misplacement and handling of gold biscuits in his custody. (1) The Commission has also observed that the statement given during investigation by the crucial witness, Shri Makwana, Daily Wager who has not been examined before I.O. during oral inquiry, because he failed to appear before him, was not convincing. If his earlier statement was true and based on facts then there is no reason why he could not attend the hearing before I.O. Considering these facts, the charge of gross negligence against Shri Shah seems to be proved on the principle of preponderance of probability. (2) Regarding Article-II of the charge, it is observed that during inquiry the witnesses deposed before I. O. did not confirm the said visit at shops, except complainant who confirmed the visit of Shri Y.O. Shah, Supdt., with other officers on 5.9.98. (It is seen from the letter dated 20.6.2005 at Para 4 of the Commissioner of Central Excise, Ahmedabad) that the two crucial witnesses who had actively participated and played important role in alleged collection and delivery of amount from the two complainants did not appear before 1.0. in spite of several opportunities being given to them. Video and Audio Cassettes produced before the I.O. did not yield any evidence of contradiction of timing. (3) The I.O. has relied upon the statement of the officers, considering the overall circumstances and analysis of evidence which are mainly based on preponderance of probability that the CO. with other officers visited the said two gift shops appear to be correct. There was no search warrant issued before raiding the said two shops nor any Panchanama was drawn by the C. O. who was heading the team of other officers/Sepoys for vexatious search. The 1.0. has erred in giving finding on this account, in his report as the search was found to unauthorized and without any search warrant. (4) In view of the above, the Commission disagrees with the findings of the I.O. and in agreement with the recommendation of DG (Vig.) would advise imposition of major penalty on Shri Y.O. Shah, Supdt.
It is, thereafter, that the disagreement note has been issued.
5. Mr. Vaishnav, learned Counsel for the applicant, has contended that a comparison of the disagreement note with 2nd stage CVC would show that the Disciplinary Authority has modified his earlier conclusion only on the dictates of CVC and hence the disagreement note is bad in law. The Disciplinary Authority has also come to a conclusion that the charges are tentatively proved.
6. The respondents have contended that the O.A. is premature as the disciplinary enquiry is at the stage of disagreement note. The Disciplinary Authority has an option to seek reconsideration of CVC advice. No reply has been received from the office of DG (Vig.) regarding his letter dated 15.6.99. The action taken by the department on his letter dated 15.6.99 and 9.11.2001 is not known as the concerned officer has been transferred. The decision in N.S. Karjagi is distinguishable as the present enquiry is at a preliminary stage and has not reached the final stage.
7. We have heard the learned Counsels.
8. The important question for consideration is as to whether the Disciplinary Authority is bound to follow the 2nd stage CVC advice contrary to his earlier tentative opinion and Enquiry Officer's report in every case. Can the Tribunal interfere if the advice is mechanically followed ?
9. The relevant paragraphs of the CVC guidelines is as under:
3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e., first stage advice is obtained on the investigation report before issue of the charge sheet and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of inquiry report. It however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee in any case gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a copy of the Commission's first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him for his information. However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee along with the I.O's. report to give him an opportunity to make representation against I.O's. findings and the CVC advice, if he desires to do so.
"4. In view of the position stated above, Para 3.6 (iii) Chapter-XI and Para 8.6., Chapter-XII of the Vigilance Manual, Vol. II and also Para 2 of the Commission's letter No. 6/3/73-R, dated 20.8.1973 may be treated as deleted.
5. Para 12.4.4 of special Chapter on Vigilance Management in Public Sector Banks and Para 22.6.4 of the Special Chapter on Vigilance Management in Public Sector Enterprises envisage that the Inquiring Authorities, including the CDIs borne on the strength of the Commission, would submit their reports to the Disciplinary Authority who would then forward the I.O's. reports, along with its own tentative views to the Commission for its second stage advice. The existing procedure in this regard may broadly continue. The Disciplinary Authority may, after examination of the inquiry report, communicate its tentative views to the Commission. The Commission would thereafter communicate its advice. This, along with the Disciplinary Authority's views, may be made available to the concerned employee. On receiving his representation, if any, the Disciplinary Authority may impose a penalty in accordance with the Commission's advice or if it feels that the employee's representation warrants consideration, forward the same, along with the records of the case, to the Commission for its reconsideration.
6. Thus, if on the receipt of the employee's representation, the concerned Administrative Authority proposes to accept the CVC's advice, it may issue the orders accordingly. But if the Administrative Authority comes to the conclusion that the representation of the concerned employee necessitates reconsideration of the Commission's advice, the matter would be referred to the Commission.
10. The applicant D.B. Gohil in O.A. 1/04 was working as Income Tax Officer. It had been contended that the Disciplinary Authority had imposed the penalty acting upon the dictate of the CVC and therefore, the order is bad in law. The respondents had taken the preliminary objection that as the applicant has not preferred any appeal and had not exhausted the departmental remedy, the Tribunal has no jurisdiction and the applicant should be relegated to the Appellate Authority. The Tribunal proceeded with the matter holding that only a question of law was involved. It took note of the decision in N.S. Karjagi v. Syndicate Bank 1991 SC 1507, AM De Silva v. Union of India AIR 1962 SC 1130, Dr. H. Mukherjee v. Union of India , the decision of A.P. High Court in Sai Baba v. Bank of India 1994(6) SLR 240 (AP) and the decision of the Tribunal in Charanjit Singh Khurana v. Union of India 1994(2) SLJ 360 (PB-ND), AN. Batyabal v. Union of India and Ors. 1996 (34) ATC 466 held as under in Paras 20, 22 and 23:
20. The following principles emerge (i) UPSC advice is advisory in nature, (ii) copy of UPSC advice has to be given in case of disciplinary proceedings and (iii) UPSC is not an Appellate Authority over Enquiry Officer's report.
"22. What we find in the instant case is that Para 6 of the circular referred to in Para 10 above indicates that if the Disciplinary Authority wants to come to a conclusion other than the second stage CVC advice on the reply of the delinquent official, the Disciplinary Authority is obliged to refer the matter to the CVC for further consideration.
This means that the Disciplinary Authority is not free to take a final decision though he is a quasi-judicial authority.
23. We are accordingly of the view that Para 6 is accordingly bad in law and is liable to be struck down.
The respondents had challenged the above order and the Hon'ble High Court vide SCA 360 of 2006 held:
5....That is not the case here, where the impugned order of penalty was passed by the Disciplinary Authority at the behest or dictate of the CVC had to be gone into and decided by the Appellate Authority in the appeal filed by the applicant against the impugned order of penalty. If the appeal was filed, then the entire record could have been produced before the Appellate Authority could have come to the conclusion as to whether the Disciplinary Authority has passed the impugned order of penalty on its own or at the dictate of CVC. When such type of matter was there, then in our considered opinion, the learned Tribunal ought not to have exercised its jurisdiction under Section 20(1) of the Act, which clearly provides that ordinarily the Tribunal should not exercise its jurisdiction when there is an alternative remedy of appeal. This type of powers can be exercised by the Tribunal only when there is an extra-ordinary case, which is not there in the instant case.
6. In view of the above discussion, this writ petition is allowed and the judgment and order dated 12.4.2005 passed by the learned Tribunal in O.A. No. 1 of 2004 is hereby quashed and set aside. However, we make it clear that if the respondent-applicant files an appeal before the Appellate Authority within one month from today, then the same shall be entertained and decided by the Appellate Authority in accordance with law as early as possible.
The applicant of the aforesaid O.A. has thereafter preferred a SLP 11154/06 in the Apex Court and the Apex Court has issued notice in the aforesaid appeal.
11. The Apex Court in N.S. Karjagi v. Syndicate Bank (supra), had held:
17. We are indeed surprised to see the impugned directive issued by the Ministry of Finance, Department of Economic Affairs (Banking Division). Firstly, under the Regulation, the Bank's consultation with Central Vigilance Commission in every case is not mandatory. Regulation 20 provides that the Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle. Even if the Bank has made a self-imposed rule to consult the Central Vigilance Commission in every disciplinary matter, it does not make the Commission's advice binding on the punishing authority. In this context, reference may be made to Article 320(3) like Regulation 20 with which we are concerned provides that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted - on all disciplinary matters affecting a civil servant including memorials or petitions relating to such matters. This Court in A.N. D'Silva v. Union of India (1962) Suppl. (1) (SCR) 968, has expressed the view that the Commission's function is purely advisory. It is not an Appellate Authority over the Inquiry Officer or the Disciplinary Authority. The advice tendered by the Commission is not binding on the Government. Similarly, in the present case, the advice tendered by the Central Vigilance Commission is not binding on the Bank or the punishing authority. It is not obligatory upon the punishing authority to accept the advice of the Central Vigilance Commission.
18. Secondly, the Ministry of Finance, Government of India has no jurisdiction to issue the impugned directive to Banking institutions. The Government may regulate the Banking institutions within the power located under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. So far as we could see, Section 8 is the only provision which empowers to the Government to issue directions. Section 8 reads:
Every corresponding new Bank shall, in the discharge of its functions, be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank, give.
19. The corresponding new Bank referred to in Section 8 has been defined under Section 2(0 of the Act to mean a banking company specified in Column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De smith's Judicial Review of Administrative Action. Fourth Edition p. 309). The impugned directive of the Ministry of Finance is, therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters.
20. For the foregoing reasons, we allow the appeal and the writ petition quashing the directive issued by the Finance Ministry, Department of Economic Affairs (Banking Division) dated 21 July, 1984. We also issue a direction to the Chairman of the Syndicate Bank to withdraw the circular letters dated 27 July, 1984 and 8 September, 1986. We further set aside the impugned orders of the Disciplinary Authority and Appellate Authority with a direction to the former to dispose of the petitioner's case in accordance with law and in the light of the observations made.
12. The A.P. High Court in Sai Baba v. Bank of Baroda (supra), had held:
11. The second submission relating to the Disciplinary Authority seeking advice of the CVO needs to be examined. It is the contention of the petitioner that the 2nd respondent sought the advice of the CVO and after receiving the advice of the CVO, the 2nd respondent revised his earlier view that a lesser punishment should be imposed and has imposed the extreme penalty of dismissal from service. In the counter affidavit it is not denied that the matter was referred to the CVO and the advice of the CVO was obtained and thereafter the order of punishment was passed. It is, however, the contention of the Bank that the 2nd respondent came to his own independent conclusion, uninfluenced by the advice tendered by the CVO and therefore the order is not vitiated.
12. In Nagaraj Siva Rao Kharjagi v. Syndicate Bank 1991(2) SLR 784, it was held that the proceedings before the Disciplinary Authority are quasi-judicial in nature and being quasi-judicial the power is unrestricted. In that case, under Regulations of the Syndicate Bank, the recommendation of the CVC could be obtained by the Bank in disciplinary matters. The Finance Ministry issued instructions making it obligatory on the part of the Bank to refer disciplinary matters to the CVC. The Supreme Court struck down such instructions as made without jurisdiction. The learned Counsel for the Bank contended that the instructions of the Ministry of Finance alone were struck down but not the regulations of the Bank which permitted such reference to the CVC and therefore Regulation 19 which required the Bank to consult the CVC whenever necessary in respect of all disciplinary proceedings having a vigilance angle is valid. As observed by the Supreme Court, the proceedings before the Disciplinary Authority are quasi-judicial in nature. Even though the advice which may be tendered by the CVO is only advisory in nature and is not binding on the Bank, still the fact remains that the CVO is the General Manager of Bank. From the facts it is seen that the 2nd respondent opined that a lesser punishment should be imposed while seeking the advice of the CVO and the CVO gave his opinion that the maximum penalty of dismissal from service should be imposed. It was followed by the 2nd respondent, the officer, who is inferior in rank to the CVO. Under the said circumstances, it is difficult to hold that the 2nd respondent was not influenced by the advice tendered by the CVO.
13. In the said circular, it has to be held that the order of the 2nd respondent was fettered by the advice tendered by the CVO. Hence, when once the disciplinary enquiry commences, it assumes quasi-judicial character and should be proceeded with, uninfluenced by any other authority and the Disciplinary Authority should be left free to come to its own conclusions without being advised by any other authority. The consultation required under Regulation 19 is referable to the stage prior to the commencement of the proceedings but not after the commencement of the disciplinary proceedings which are quasi-judicial in nature.
13. Paras 5 and 6 of the revised CVC circular have to be seen in the context of above decisions.
14. Only the President can act as the Disciplinary Authority of Group-A officers. The UPSC has to be necessarily consulted in such cases as per the provisions of the Constitution. In case the Department disagrees with the advice of UPSC the matter is referred to the Prime Minister through DOPT for final decision and that decision become the decision of the Disciplinary Authority. Where the UPSC advice is not accepted finally the same is highlighted by the UPSC in its annual report to the Parliament.
On the other hand, the CVC has to be consulted whenever the preliminary investigations/ investigations are made by the CBI or internal vigilance organisation. Para 6 of new guidelines shows that if Disciplinary Authority does not accept the second stage advice of CVC then that matter has to be sent back to CVC for its reconsideration. It is in this background he had struck down that Para 6 of the circular.
We may note in passing that the Concise Oxford Dictionary (7th edition) defines advice as opinion given or offered as to future action", while dictate means "authoritative instruction".
15. The Constitution Bank of Apex Court in K.R. Deb v. Collector, Central Excise & Customs has held as under:
13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
16. The Apex Court in State of Assam v. J.N. Roy Biswas has held as under:
3. What is the conspectus of circumstances ? A small veterinary official, a long enquiry for misconduct, a final direction cancelling suspension and reinstating : him, the likelihood of the man having retired (15 years have gone by) and nothing on record to substantiate any fatal infirmity in the earlier enquiry or dereliction of duty by the Disciplinary Authority except that a reasoned record of findings was to be forthcoming, but did not, because he had retired in the meanwhile? No action against the retired Director for this alleged omission was felt justified and perhaps was not warranted, but with persistent litigative zeal Government has come in appeal to this Court against a petty official. Had he misappropriated Government money he should have been punished expeditiously. But having been exculpated after enquiry, the State could go at him by re-opening the proceedings only if the rules vested some such residuary power. None such has been shown to exist although one wonders why a rule vesting such a residuary power of a , supervisory nature to be exercised in the event of a subordinate Disciplinary * Authority not having handled a delinquent adequately or rightly is brought to the attention of Government has not been made. No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary Authority after the delinquent had once been absolved. The appeal must fail and is dismissed with costs.
4. We may however make it clear that no Government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official re-instated, presumably on full exoneration, a chagrined Government cannot re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is apparent on the record.
17. A 3 Judges Bench of the Apex Court in Punjab National Bank v. Kunj Behari Misra has held as under:
In the present case, it was open under Regulation 6 to the Disciplinary Authority either to appoint an Enquiry Officer for conducting enquiry or to itself conduct enquiry. When the enquiry is conducted by the Enquiry Officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the Disciplinary Authority. It is the Disciplinary Authority which can impose the penalty and not the Enquiry Officer. Where the Disciplinary Authority itself holds an enquiry, an opportunity of hearing has to be granted by it. When the Disciplinary Authority differs with the view of the Enquiry Officer and proposes to come to a different conclusion, there is no reason as to why any opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officer succeed before the Enquiry Officer, he is deprived of representing to the Disciplinary Authority before that authority differs with the Enquiry Officer's report and, while recording a finding of guilt, imposes punishment on the officer. In any such situation, the charged officer must have an opportunity to represent to the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Kamnakar case.
18. The Apex Court in Sher Bahadur v. Union of India 2002 SCC (L&S) 1028 has held:
The expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the Enquiry Officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. The finding of the Enquiry Officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter was proved, is erroneous. It is clearly a case of finding the appellant guilty of the charge without having any evidence to link the appellant with the alleged misconduct. Therefore, the order of the Disciplinary Authority, under challenge, cannot be sustained.
19. A comparison of Para 4 of the disagreement note of Disciplinary Authority with the second stage CVC advice shows as under:
(i) The CVC advice (portion 1) is suitably modified to hold him guilty of gross negligence. The CVC advice said that he was in charge of airport.
(ii) It is identical to portion 2 of CVC advice except for the words "undersigned" for "Commission" and "is proved" for "seems to be proved on the principle of preponderance of probability".
(iii) It is identical to portion 3 of CVC advice except for use of expression "further observed" in place of expression within brackets.
(iv) It is identical to portion 4 of CVC advice except for the word "two" not appearing.
20. We note that the Enquiry Officer in his report has placed reliance on statement of H.P. Makwana recorded by Assistant Commissioner Customs on 3.11.98 and 5.11.98 that he found a gold biscuit No. 7080 and a key on 7.5.98. The said Shri Makwana also produced the second gold coin and his submissions were accepted by the department (Para 25). He accordingly concluded that applicant cannot be held responsible for charge No. 1. It is for the prosecution to bring the evidence. Nothing is stated in the reply as to what action was taken either against this person, who did not turn up for evidence, or the officer, who failed to produce him. There is no discussion either in the CVC second stage advice or disagreement note as to why this finding is bad.
21. As regards Article-II the applicant in his written statement denied visiting the shop on 5.9.98. It is asserted that he worked in office till 1400 hours. It has also been indicated that the complaint was lodged on 7.10.98. It states that the applicant had submitted a representation dated 7.1.99 to the Chief Commissioner about the seizure from a carrier of the complainant named Yusuf by the M&P officer at Jet Airways domestic airport. Joint Commissioner Customs (Hqrs) had also investigated the matter. The complainant had closed their notified shop.
It appears that amongst the 7 witnesses only four were examined. The three witnesses who allegedly actively participated and played important role in collection and delivery of amount did not appear before the Enquiry Officer. Sepoy S.B. Sadhu had retracted his confessional statement, which was accepted by the Enquiry Officer. The evidence of Narendra Dave was not discussed. It is noticed that the said Shri Dave is referred to as of M/s. See Well Enterprises. Neither the article of charge nor the statement of imputation refers to this shop.
The Enquiry Officer has noted in Para 37(1) that in his evidence on 13.5.03 one of the two co-complainants Shri Kanaiyalal Navnani said in cross examination that this applicant had not visited the shop. The Enquiry Officer in Para 37(2) has held that if the above incident was really taken place, he should have named the officers who had taken away the goods from his premises and there was no need to remain silent till 13.5.03.
We also note that the action taken on his letter dated 7.1.99 is not reported saying that the officer dealing with the file has been transferred.
22. The Constitution Bench decision in K.R. Deb (supra) shows that there can be only one enquiry and that there is no provision in Rule 15 for completely setting aside previous inquiries. The Apex Court decision in J.N. Roy Biswas (supra) shows that absence of power under rule inhibits second enquiry after the delinquent had been absolved of the charges. The Apex Court in Kunj Bihari Misra after noticing the Constitution Bench decision in Karunakar's case has concluded that the first stage concludes with the recording of findings by the Disciplinary Authority. It is further held that the Disciplinary Authority can disagree with the findings of the Enquiry Officer on the basis of evidence on record. The Constitution Bench in K.R. Deb's case is also to the same effect. The Apex Court in Sher Bahadur has explained as to what is meant by sufficiency of evidence and that a mere statement that in view of the oral documentary and circumstantial evidence the charges are held to be proved can not satisfy the rule of sufficiency of evidence.
23. It may so happen that the Disciplinary Authority can come to the conclusion that there is some procedural defect in the conduct of enquiry in as much as certain witnesses have not been examined. The normal practice in such cases is to remit the matter back to the Enquiry Officer to proceed from that stage and to record his modified findings in light of such evidences.
The other categories of cases are those where on the basis of evidence on record the Disciplinary Authority comes to a different conclusion than the Enquiry Officer. In such cases there has to be a categorical finding as to how the Disciplinary Authority has arrived at his conclusion disagreeing with the findings of Enquiry Officer.
24. Coming to the facts of this case we notice that as regards Charge No. 1, the said Farash did not appear before the Enquiry Officer. If he had not appeared before the Enquiry Officer the statement given by him in preliminary enquiry could not have been taken as evidence against the applicant. It is also to be noticed that the said statement further provided that the theft took place on 7.5.98 much before the applicant took charge for a day on 22.5.98. Similarly in respect of Charge No. -II it is seen that the three key witnesses have not been examined. The Enquiry Officer held that the charge consists of four sub-components and that the main charge of taking certain goods without drawing up panchanama and demanding and accepting the amount has not been proved after discussing the evidence of the complainant. No reasons have forthcoming in the orders of Disciplinary Authority as to why those findings have been disagreed to.
25. Neither the CVC advice nor the Disciplinary Authority's disagreement discloses the convincing reasons. CVC advice refers to DG (Vigilance) advice, which is not brought on record. The reply also does not justify as to on what evidence the Disciplinary Authority came to a conclusion, different from his tentative conclusion. It has been indicated in Para 19 above that apart from change of few words the disagreement note is a carbon copy of CVC advice.
26. The DG/Vigilance, as the name signifies, in a DG rank officer. The Disciplinary Authority is a Commissioner rank officer. There is also the intervening rank of Chief Commissioner. The Disciplinary Authority initially advices exoneration.
27. The Apex Court in Karjagi's case had reiterated that UPSC advice is advisory, not binding and that UPSC does not act as Appellate Authority of D.A./E.O. The advice is not binding. It further held that no third party either the Government or CVC can advice the Disciplinary Authority on how the exercise its quasi-judicial power. It struck down the circulars issued by Ministry of Finance and Syndicate Bank.
The Andhra Pradesh High Court in V. Sai Baba's case noted that CVO was of GM rank while the D.A. was of inferior rank. The D.A. had initially advised imposition of lesser punishment but later on imposed the punishment.
28. It is true that the present matter is only at the stage of disagreement note. But as per Para 6 of the guidelines the D.A. cannot exonerate and has to send that matter back for reconsideration.
29. In view of what has been discussed above, we are of the view that this is a fit case to be interfered with as the Disciplinary Authority has issued the disagreement note on the dictates of CVC and without coming to an independent finding. We accordingly quash and set aside the disagreement note. In the result the disciplinary proceedings also stands quashed. There shall be no order as to costs.