Bombay High Court
Ashok Jagannath Ghode vs Union Of India Through Secreetary ... on 8 March, 2023
Bench: S.V. Gangapurwala, Sandeep V. Marne
Urmila Ingale 59-wp-13720-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
URMILA
PRAMOD
INGALE WRIT PETITION NO. 13720 OF 2022
Digitally signed by
URMILA PRAMOD
INGALE
Ashok Jagannath Ghode ..Petitioner
Date: 2023.03.10
11:29:02 +0530
VS.
Union of India and Ors. ..Respondents
Mr. Ajeet Manwani a/w Mr. Faisal Vora i/b A&A Legal, for the
Petitioner.
Mr. Neel Helekar a/w Mr. A.A. Garge, for Respondents No. 1
to 3.
CORAM : S.V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE, J.
DATED : MARCH 8, 2023
P.C. :
1. The petitioner has approached this Court against the
order of the Tribunal dismissing the original application.
2. The petitioner was working as a Superintendent-
Technical in Pune headquarter with respondent no. 2. The
disciplinary proceedings were initiated against the
petitioner. The following are the charges:
"Article of Charge-I
Boards Circular No.10/1997, dated 17-04-1997 (Para 8)
prescribes maintenance of Shipping Bill and DEPB registers for
all Shipping Bills filed for export under DEPB Scheme, wherein
minimum specified details were required to be entered. Shri
A.J. Ghode, in the capacity as Superintendent failed to ensure
maintenance and availability of the said registers in respect of
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fraudulent exports made by M/s. Ruchika International under
43 Shipping Bills. Further, Shri A.J. Ghode, Superintendent
failed to maintain Telegraphic Release Advice Register for
DEPB Licences issued to the said exporter during the period as
per Para 9 of the Boards Circular No. 91/98, dated 17-12-
1998. The missing of all records, registers from I.C.D., Miraj,
clearly points out collusion and abetment on the part of Shri
A.J. Ghode, Superintendent with the said fraud exporter.
Article of Charge-II
As per Para No. 7 of Circular No. 10/97, dated 17-04-1997, it
was essential to check the correctness of the FOB value
declared with a view to ensure the FOB value is not inflated to
claim higher DEPB entitlement. When the goods are exported
under the DEPB Scheme, the rate of DEPB eligibility is based
on the description and value. When DEPB rates are ad-
valoreom, it was the primary duty and responsibility of the
Superintendent to verify and ensure the correctness of the
FOB value declared with respect to the goods under export.
Shri A.J. Ghode, Superintendent failed to take adequate steps
to ensure the proper valuation of the goods. This failure on
the part of Shri A.J. Ghode, Superintendent enabled the
exporter to grossly over invoice the export goods and obtain
DEPB scrips against exports by submitting bogus BRCs (Bank
Realization Certificates) to DGFT.
Article of Charge-III
As per Para 4.5 of the Public Notice No. 75/2001, dated 22-
06-2001 issued under F.No. VIII/CUS/40-14/TC/98/594 by the
Commissioner of Customs, Pune, samples wherever necessary
are to be drawn in the presence of Exporter's representative.
However no such samples were available nor the records of
drawal of sample or test thereof were maintained. All the
Shipping Bills attended by him were found finally assessed on
the same dates on which the goods were examined and
assessed. In his letter dated 10-10-2006, Shri A.J. Ghode,
had written to the department that he had drawn samples in
respect of 3 Shipping Bills and was satisfied with the
declaration of the goods and thereafter he did not draw any
samples as the consignments were similar. Subsequently, in
his statement dated 01-02-2008, he stated that no samples
were drawn although he had certified on the Shipping Bills
that the samples were drawn. This act on the part of Shri A.J.
Ghode is unbecoming of a government servant in as much as
his certification on the documents was not factual.
Article of Charge-IV
He allowed clearance of export cargo under 43 Shipping Bills
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filed by M/s. Ruchika International without following the
prescribed procedure. The goods meant for export, were
purchased from Mumbai and bought to I.C.D., Miraj for export
through Nhava Sheva, Mumbai. Shri A.J. Ghode,
Superintendent in charge of I.C.D., Miraj, did not take
adequate steps to find out as to why the exporter M/s.
Ruchika International which was based in Mumbai was
bringing the goods from Mumbai and getting them cleared for
export at I.C.D., Miraj and was taking the containers stuffed
with export goods to Nhava Sheva for shipment. Inspite of
being aware of the strange route followed by the exporter,
Shri A.J. Ghode failed in drawing of samples and sending it for
testing before finally assessing the Shipping Bills. He also
allowed clearance on self basis to the exporter from I.C.D.,
Miraj even though there was no specific permission from
Commissioner of Customs, Pune. Thus, he failed to perform
his duty with integrity and devotion which resulted in loss of
revenue to the department by way of fraudulent
claim/utilization of DEPB credit totally amounting to Rs.
1,45,06,298/-.
By the above acts of omission and commission, Shri A.J.
Ghode, Superintendent failed to maintain absolute integrity,
devotion to duty and acted in a manner which is unbecoming
of Government servant and thereby has contravened the
provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) and 3(2)(i) of
the Central Civil Services (Conduct) Rules, 1964."
3. The Disciplinary Authority imposed punishment of
reduction of pay by 3 stages in the time scale of pay of
Rs.9,300 to Rs.34,800/- for a period of 2 years. The
petitioner filed appeal. The Appellate Authority held that
the charges I and IV are not proved and reduced the
duration of penalty to 1 year. The original application filed
by the petitioner is dismissed.
4. We have heard learned counsel for the petitioner and
learned counsel for the respondents.
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5. The scope of judicial review in such cases lies in
narrow compass. This Court in exercise of writ jurisdiction
under Article 226 would not sit in appeal over the decision
taken by the respondents; however, would be more
concerned with the decision making process. In the present
case, the principles of natural justice have been adhered to.
No grievance has been made in respect of the same. The
defence has been appreciated and re-appreciated by the
Appellate Authority and the Tribunal. We do not find any
perversity in the appreciation of the defence in that regard.
6. Upon going through the order passed by the Appellate
Authority, it appears that the Appellate Authority came to
the conclusion that the charges I and IV are not proved and
they are required to be dropped. However, from operative
part of the order, it appears that the Appellate Authority
dropped charges in Article I while modifying the order of the
Disciplinary Authority and imposing the penalty. In fact, the
Appellate Authority was required to consider dropping of
charges in Articles I and IV both. Paragraphs 37 & 38 of the
order of the Appellate Authority read thus:
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"37. In view of the foregoing discussions and findings, I
drop the charges framed against the Appellant in Article I
and IV and confirm the charges against the Appellant
framed in Articles II and III of the Memorandum of
Charge dated 31-05-2010.
ORDER
38. In view of the dropping of charges in Article I, I modify the order of the disciplinary authority and impose the following penalty on Shri A.J.Ghode, Superintendent, under the provisions of clause (v) of Rule 11 of Central Civil Services (Classification, Control and Appeal) Rules, 1965:
"I order reduction of pay of Shri A.J.Ghode, Superintendent, by three stages in the time scale of pay of Rs.9,300/- to Rs.34,800/- for a period of 12 months with effect from 01-06-2014. It is further ordered that Shri A.J.Ghode, Superintendent will not earn increments of pay during the said period of reduction and that on the expiry of this period, the reduction will have the effect of post-poning his further increments of pay".
This aspect also does not seem to have been considered by the Tribunal while passing the impugned order.
7. In light of that, we pass the following order.
ORDER
i) The impugned order of the Tribunal is quashed and set aside.
ii) The matter is remitted back to the Appellate Authority for deciding the appeal afresh with regard to the quantum of punishment.
iii) The Appellate Authority shall consider that the charges framed in Articles I and IV have been dropped 5/6 Urmila Ingale 59-wp-13720-22.odt against the petitioner as not proved and only charges in Articles II and III are to be considered for punishment and thereafter impose punishment accordingly.
iv) The said exercise shall be completed preferably within 3 months.
v) The petitioner is at liberty to appear before the Appellate Authority.
8. The writ petition is disposed of. No costs.
9. The parties to act on authenticated copy of this order.
(SANDEEP V. MARNE, J) (ACTING CHIEF JUSTICE) 6/6