Central Administrative Tribunal - Delhi
Sh. J.P.Singh vs Union Of India on 19 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1690/2007 MA No. 1733/2007 New Delhi, this the 19th day of November, 2008 HONBLE SHRI JUSTICE V.K. BALI, CHAIRMAN HONBLE SHRI L.K. JOSHI, VICE CHAIRMAN (A) Sh. J.P.Singh s/o Sh. Jai Deo Singh, Working as Joint Commissioner, Bhopal, r/o 9887, C-9, Vasant Kunj, New Delhi. Applicant (By Advocate: Sh. Ashwani Bhardwaj) Versus 1. Union of India Through the Secretary, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, New Delhi-110001. 2. The Chairman, Central Board of Excise & Customs, Ministry of Finance, Department of Revenue, North Block, New Delhi. 3. The Commissioner of Customs, ICD, Tughlakabad, New Delhi. Respondents (By Advocate: Sh. R.V.Sinha) ORDER
Shri L.K.Joshi, Vice Chairman (A) The Applicant is assailing the memorandum number 27/2006 under Rule 14 of CCS (CCA) Rules, 1965, enclosing four Articles of Charge, issued on 19.05.2006 to him. Challenge is also made to the advice of the Central Vigilance Commission dated 27.07.2005, advising the second Respondent to proceed against the Applicant for regular departmental action for major penalty (Annex A-1, colly.).
2. The facts as gleaned from record would show that the Applicant is an officer of the 1992 batch of Indian Revenue Service (IRS) of Customs and Central Excise Service. During the relevant period, the Applicant was an Assistant Commissioner and then promoted as Joint Commissioner on 25.09.2002. The Directorate of Revenue Intelligence (DRI), Mumbai initiated some investigations against five companies namely M/s R.S. & Company, M/s Stitch & Style, M/s Himgiri Overseas, M/s Deepshikha Overseas and M/s Saharanpur Handicraft, New Delhi for fraudulent exports and making fraudulent claims of drawbacks. On the basis of these investigations, the DRI issued show cause notice dated 3.12.1999 under Section 124 of the Customs Act, 1962 and under Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995 for imposing penalty under Sections 114 (i), 114 (ii) and 117 of the Customs Act, 1962. It was, inter alia, alleged that the Applicant had entered into a conspiracy with one Rajesh Bhasin for carrying out fraudulent exports by wrongly declaring the old and used clothes as readymade garments under claim of drawback. The Applicant was also placed under suspension on 7.03.2000, which was revoked in March, 2001. The Applicant replied to the show cause notice and made his written submission on 15.10.2001. The representation of the Applicant did not find favour with the Respondents and a fine of Rs. two lakhs was imposed on him vide order 19.08.2003. The Applicant challenged this order before the Customs, Excise and Service Tax Tribunal (CESTAT), which stayed the penalty by its order dated 29.10.2003 and allowed the appeal by its order 21.11.2005, quashing the order imposing penalty on the Applicant. The Respondents did not challenge this order before any higher forum. On 19.05.2006, the impugned memorandum was served on the Applicant. The Applicant submitted his reply dated 1.09.2006. The Respondents did not take any action for one-and-a-half years. The Enquiry Officer and the Presenting Officer were appointed only on 4.03.2008, six months after filing of the instant OA.
3. The action of the Respondents in initiating the departmental proceedings against the Applicant has been challenged on several grounds. First, the charges against the Applicant are the same as in the enquiry under the Customs Act, 1962. The CESTAT quashed the penalty imposed by the Respondents. The finding of CESTAT has remained unchallenged and has become final. Third, the statement of witnesses, cited in the list of relied upon documents, have been recorded behind the back of the Applicant without affording him an opportunity to cross examine them. Cognizance of these statements cannot be taken without their appearing in the disciplinary enquiry and giving the Applicant an opportunity to cross examine them. -The only witnesses listed in the list of witnesses are those who had recorded the statements of persons during the enquiry under the Customs Act. The charge is founded solely on those statements. These witnesses can only state that they had recorded the statements, of which the copies have been placed as relied upon documents. It is contended that the charge cannot be proved without examining the witnesses and giving the Applicant opportunity to examine them and by only considering their previous depositions. Fourth, the charges against the Applicant relate to the acts done in 1998 and the memorandum of charge has been served on the Applicant after an inordinate delay of eight years in May, 2006. No explanation for the delay has been given by the Respondents. The delay has caused serious prejudice to the Applicant.
4. The learned counsel for the Applicant has taken us through the show cause notice, order under the Customs Act and the order of the CESTAT. The statements of the Applicant and other persons quoted in the show cause notice of 3.12.1999 are favourable to the Applicant and do not prove the charge against him, which basically is that he is the benami owner of the five firms, mentioned in paragraph 2 above. Paragraph 114 of the show cause notice is reproduced below:
114. After seeking the statements dated 15.10.99 of Shri Rakesh Dhir, who had stated that Shri J.P.Singh had sent letters for freezing and subsequently for de-freezing the account of M/s. Ganga Yamuna Exports, he stated that offhand he did not remember the details but sending letters to the Bank or giving instructions is quite normal with regard to drawback claims and there is nothing unusual about it. He further stated that Mobile number 98111-66908 was against a cash card and he did not have any other mobile number although he might have used mobile phones belonging to others. On being asked about more than 1000 calls made between 1.11.98 to 26.2.99 through his cell phone number 98111-66908 to ISD no. 006-1414-319264 he stated that the above mentioned number belongs to a family friend Dr. Ms. Y.Hussaini who lives in New South Wales, Australia; that at that part of time she was suffering from acute depression which was the reason for making frequent calls on that number. While discussing the role of Rajesh Bhasin, it has been noted thus in paragraph 116:
Investigations have also established that he was in constant touch with Customs officers posted as ICD and that he was in constant touch with Shri J.P.Singh, Assistant Commissioner even after detention and seizure of 26 containers by DRI. He has not been able to produce any documentary evidence to support his contention that these five firms belong to Shri J.P.Singh. On the contrary all the evidence discussed above indicates that the entire show pertaining to exports by these five firms was being stage managed/controlled by him. The large amount of to and fro transactions from the Bank accounts of these five firms to the other firms owned and controlled by Shri Rajesh Bhasin leave no doubt that the money received as drawback was being siphoned off through benami transactions/pay orders by Shri Rajesh Bhasin and his men. (emphasis added) The charge was proved against the Applicant merely on the basis of weak arguments based on circumstantial evidence, according to the reasoning given in paragraphs 122 and 142(g) of the show cause notice quoted below:
122. Shri J.P.Singh was posted as Assistant Commissioner, at ICD, Tughlakabad, at the material time. Investigations revealed that prior to the clearance of subject exports, he was very close to Shri Rajesh Bhasin and had introduced Shri Rajesh Bhasin to Shri S.N.Ojha, his successor as AC (Export), ICD, TKD. This has been confirmed by Shri Rajesh Bhasin as well as Shri S.N.Ojha and Shri J.P.Singh himself. The scrutiny of printouts of mobile telephone nos. of Shri Rajesh Bhasin revealed that Shri J.P.Singh had contacted and received calls from Shri Rajesh Bhasin 320 times at the material time. Such high frequency of calls between the two clearly shows that they were having a close relationship. Shri Rajesh Bhasin had confirmed this in his statement that he used to discuss with Shri J.P.Singh about the subject exports prior to their examination and Shri Bhasin has confirmed that he was in contact with Shri J.P.Singh even after seizure of subject goods by the DRI, Mumbai. The mobile prints of Shri Rajesh Bhasin substantiate the talks held between Shri J.P.Singh and Shri Rajesh Bhasin. Further, Shri Rajesh Bhasin has alleged that the subject five firms wore floated by Shri J.P.Singh in association with one Shri N.G.Pillai, a Custom House agent and they had processed old and used readymade garments and rags through S/Shri R.K.Nair, K.Karunakaran, Gope Kumar and also they opened and operated bank accounts in the names of above firms. Shri J.P.Singh was holding charge of Drawback Section at ICD, TKD, at the material time and the customs documents, bank records and relevant documents revealed that he had processed the drawback claims of these five firms without any scrutiny though he was fully aware that the claims were not bonafide. Due to his collusion and abetment, the exporter succeeded in exporting 36 container load of goods by misdeclaring the description, quantity quality and value and fraudulent drawback of Rs.7,41,75,970/- was claimed. Due to misdeclaration, the goods appear to be liable to confiscation under Section 113 (d) and 113 (i) of the Customs Act, 1962 and Shri J.P.Singh appears to be liable to penalty under Section 114 (i) and 114 (iii) of the Customs Act, 1962. xxxx xxxx xxxx 142(g) Shri J.P.Singh, the then Assistant Commissioner of Customs, ICD, TKD, by his act of commission and omission and by aiding and abetting the exports for fraudulent drawback claim of Rs.7,41,75,970/- has rendered himself liable to penal action under section 114 (i), 114 (iii) and section 117 ibid.
5. Cognizance of the Applicants statement has been taken in the order of punishment dated 19.08.2003 thus :
64 Statement of Shri J.P.Singh, now Deputy Commissioner of Customs (then Assistant Commissioner of Customs, ICD: TKD), were recorded under the section 108 of the Customs Act, 1962, on 21.4.99 wherein, he, stated, interalia, that during the month of May to June 1998 he was holding charge of Assistant Commissioner of Customs (Exports) and thereafter, he handed over the charge of export to Shri S.N.Ojha, Assistant Commissioner; that he used to send people to AC (Exports) for redressal of their problems; that Shri Rajesh Kumar used to telephone him on his residential, official and his personal mobile phone from a number of mobile phones belonging to Shri Rajesh Bhasin and he also used to ring Shri Rajesh Bhasin on the mobile phones; that he did not know the names of the firms of Shri Rajesh Bhasin but he knew that he was one of the exporter of readymade garments and he (Shri Rajesh) used to discuss problems relating to export, drawback, public grievance, computer and also used to give him information for his preventive work and that though there were number of calls from Shri Rajesh Kumar to him and from him to Rajesh Kumar, he never had any relationship with Shri Rajesh Kumar beyond office premises; that he referred Shri Rajesh Kumar to Shri S.N.Ojha. Doubts have been raised in paragraph 92 of the order again about the veracity of Rajesh Bhasins statement that the five firms were started by the Applicant. Paragraph 92 is extracted below :
92. On being asked that all the evidence and statements recorded, indicate that the subject fraudulent export was done by him and whether he had any independent evidence/documents to suggest or whether he could name any other person who could furnish any independent evidence to his (Rajesh Bhasins) statements that all the five firms whose 26 containers had been seized by Mumbai DRI were started at the instance of Shri J.P.Singh. Shri Bhasin replied that Shri Gopi Pillai and Shri J.P.Singh were in position to provide evidence, oral as well documentary. He was asked whether he wanted to state anything also than what was stated by him in his earlier statements to this Shri Bhasin replied in the negative that he did not have any more to say or state. The order has also taken note in paragraph 111, 114 and 161 of the statements of the Applicant and Rajesh Bhasin that he (the Applicant) had himself stopped the payment of disbursement of drawback, he had no nexus with Rajesh Bhasin as far as the five firms were concerned and that he had the protection under Section 155 of the Customs Act for the actions done in the discharge of his official duties:
111. Shri J.P.Singh was shown the statements dtd. 13.10.99, 14.10.99 and 15.10.99 of Shri Gopi Pillai. After seeing the statements, he stated that he knew Shri Gopi Pillai as he was a licensed CHA operating from Delhi and he knew him since his posting as A.C., Aircargo, New Delhi; that as Shri Gopi Pillai lived in the same vicinity he also used to go to office with him and that he was also in contact with Shri Gopi Pillai on Phone. He denied using mobile no. 98101-87282 and that mobile number 98111-97578 was used by his wife who was a qualified doctor employed with Red Cross and that he might have used this phone on certain occasions. On being asked about, the statement of Shri Gopi Pillai dtd. 14.10.99 wherein he (Gopi Pillai) had stated that Shri Rajesh Bhasin had requested him to speak to Shri J.P.Singh to help him in the case of 26 containers seized by DRI and that Shri Gopi Pillai advised Rajesh Bhasin to speak to J.P.Singh directly, he stated that neither Shri Pillai nor Shri Rajesh Bhasin spoke to him on this issue; that he had no personal interest in those 26 containers seized by DRI; that on the contrary he himself stopped the disbursement of drawback which was already sanctioned, by giving oral as well as written instructions to the Bank immediately on receipt of message from DRI, Mumbai. xxxx xxxx xxxx 114. The contention of Shri Rajesh Bhasin that he had nothing to do with the export of these 36 containers was not borne out by facts. He had not been able to given any explanation as to why he was in telephonic contact with Shri Satish Gupta, CHA, or Shri J.P.Singh, Assistant Commissioner, if he had no cause or concern with the export of these goods. The CHA Shri Satish Gupta and Shri Lovkesh Sharma, Inspector of Customs at ICD, TKD, had confirmed that goods were directly stuffed into containers after unloading from the trucks without examination and that Shri Rajesh Bhasin had managed direct stuffing of these goods without examination through Shri S.N.Ojha, Assistant Commissioner. Investigations have also established that he was in constant touch with Customs Officers posted at ICD and that he was in constant touch with Shri J.P.Singh, Assistant Commissioner even after detention and seizure of 26 containers by DRI. He had not been able to produce any documentary evidence to support his contention that these five firms belonged to Shri J.P.Singh. On the Country all the evidence discussed above indicated that entire show pertaining to export by those five firms was being stage managed/controlled by him. The large amount of to and fro transaction from the Bank accounts of these five firms to the other firms owned and controlled by Shri Rajesh Bhasin left no doubt that the money received as drawback was siphoned off through benami transactions/pay order by Shri Rajesh Bhasin and his men. It was hard to believe his contention that he did not open the bank account of M/s Akash Exim Pvt. Ltd. and was unaware about the transactions in the said account. He admitted that M/s Akash Exim Pvt. Ltd. was taken over by him from Mrs. Sunita Agarwal and Mr. Sanjay Goyel in February 98 and that on 3.2.98 himself and wife joined as directors of the said company. Further the Statement of account of M/s. Akash Exim, showed receipt of large amounts from the accounts of M/s. D.J. Overseas, M/s. Stitch & Style and M/s. R.S. & Co. It is difficult to believe his pretended ignorance about bank transactions in a firm in which himself and his wife were the only directors and as per his statement dtd. 22.9.99 he took full responsibility for all the activities of the firms wherever his wifes name figured. Evidence discussed above indicated that part of the amounts received as drawback were invested by Shri Rajesh Bhasin for purchase of properties as well meeting construction expenses of these properties. All the above facts indicated that he was the mastermind behind this fraud and its principal beneficiary. His role in this case were restricted to export in 36 containers in the name of above referred five firms and separate show cause notice would be issued for his role to fraudulent export under claim of drawback in other firms. (emphasis supplied).
xxxx xxxx xxxx ----------------161. Shri J.P. Singh, noticee, in his written reply dated 22.8.2000, inter-alia, submitted that under Section 155 of the Customs Act, 1962, no such prosecution or other legal proceedings could be taken against any officer of the government for anything which was done or intended to be done in good faith, in pursuance of the said Act or the rules or regulations; that as he had carried out all his duties in good faith as such issuance of SCN to him was against the spirit of Section 155 of the Act ibid; that as he had done nothing in relation to the impugned goods, that penalty could be imposed on him; that he had only processed drawback claims after he let export order had been given by way of scrutinizing the documents presented for claiming drawback ; that he did not ignore any thing which was reflected in the documents that while discharging his functions under the Act ibid or the rules in question, he did not ignore or connect any thing due to which the goods under question become liable to confiscation u/s 113 for any act of commission or omission as Asstt. Commissioner, Drawback; that even assuming the worst against himself that he failed to discharge duty efficiently or he was negligent, even then such action would not amount to abetment under Section 114; that he is entitled to the protection u/s 155 read with Section 105 of the Customs Act, 1962, he relied upon and cited certain decision of the Apex court.
Castao Fernandes Vs. State (CBI, Bombay) 1996 (82) ELT 433 (SC) Assistant Collector Vs. Ramdev Tobacco Co. 1991 (51) ELT 631 (SC) Vasudeva Bank Vs. GOI 1990 (48) ELT 214 (Mad) CC, New Delhi Vs. MI Khan & Others A/488-90/2000-NB (DB) Shri J.P. Singh, noticee, further submitted that it was wrong to say that he was close to Shri Rajesh Bhasin as he interacted with the latter only with regard to the usual problems in the system of computerization, other admn. issues, public grievances; that he introduced Shri Rajesh Bhasin to the A.C. Export Shri Ojha as he was no longer A.C. Export and he introduced all persons who approached him for export related problems and Sh. Bhasin was one of them; that frequency of calls cannot decide close relationship; that the statement that Shri Rajesh Bhasin used to discuss with him about the subject export is wrong and is specifically denied; that the attempt of Shri Rajesh Bhasin to implicate him by stating that the firms belonged to him has been discarded by investigation itself; that he had no knowledge about the firms or the modus operandi planned by Shri Rajesh Bhasin; that as soon as he came to know about the fraud from Bombay, he personally rushed to the Bank and got the remaining disbursement of drawback amount of Rs.3,54,63,360/- stopped; that in any case, statement of a co-noticee cannot be relied upon against him unless the same was independently corroborated; that he was not aware of the fact that the said firms belonged to Shri Bhasin; that frequency of calls cannot decide close relationship and such conclusion could be on presumption and conjecture; that he denied that he ever received a call from Rajesh Bhasin in r/o any of the present consignments either prior to or after the fraud was detected; that as AC drawback, he fulfilled all his allegations and discharged his duties after due scrutiny and application of mind; that he denied the allegation of his collusion and abetment as he had no knowledge of the names of the companies of Shri Rajesh Bhasin, their activities, their modus-operandi or any other aspects of their business; that in view of the above submissions it is prayed that SCN may be withdrawn and desired to be heard in person. The learned counsel has strenuously urged that the Commissioner of Customs, who passed the order imposing a fine of Rs. two lakh on the Applicant under the Customs Act, has repeatedly noted that Rajesh Bhasin failed to establish that the five firms referred to in paragraph 2 above belonged to the Applicant.
5. The CESTAT in its order dated 29.10.2003, staying the operation of the order dated 19.08.2003, observed thus :
We find that the adjudicating authority in the impugned order held that it is the, case of circumstantial evidence and there is no evidence regarding financial flow back to the applicants. In the circumstances, prima facie, we find that it is a fit case for total waiver of pre-deposit of penalty. The stay applications are allowed unconditionally. While allowing the appeal of the Applicant, the CESTAT held that:
4. First, we take up the appeal filed by Shri J.P. Singh, Assistant Commissioner (Drawback). The contention on behalf of Shri J.P. Singh is that he was working as Assistant Commissioner (Drawback) and that initial investigation was started on the statement of Shri Rajesh Kumar on the ground that all the exporting firms were created at the instance of Sh. J.P. Singh but after investigation when the show-cause notice was issued, the only allegation against the appellant is that there is no evidence to support his contentions that these five firms belong to Shri J.P. Singh. On the contrary, all the evidence collected during investigation indicates that the entire show pertaining to floating and exports by these five firms was being stage managed/controlled by Shri Rajesh Kumar. The contention is that the adjudicating authority in the impugned order in para 222 imposed the penalty on the ground that applicant introduced Sh. Rajesh Kumar (exporter) to Sh. S.N. Ojha, Assistant Commissioner as exporter and during the period when the goods were seized the exporter Shri Rajesh Kumar was in touch with Shri J.P. Singh. The contention is that Commissioner of Customs in the impugned order imposed the penalty only on the ground that there is substantial evidence against the appellant. The contention is that there is no evidence on record to show that the appellant was any way connected with the exporting of goods or with Shri Rajesh Kumar and there is no evidence regarding any monetary benefit gained by the appellant. The contention is that in these circumstances, the imposition of penalty is not sustainable.
5. The contention of the Revenue against Shri J.P. Singh is that initial stages their exporter specifically mentioned his name. In his statement Shri J.P. Singh mentioned that Shri Rajesh Kumar is exporter and Sh. J.P. Singh introduced to Shri Rajesh Kumar to Shri S.N. Ojha. The contention is that over all evidence collected by the Revenue shows that Shri J.P. Singh was in the knowledge that the exported goods were overvalued to claim the higher rate of drawback. In spite of this knowledge he allowed the drawback claims to the exporting firms, therefore, he is liable for penalty.
6. We find that Sh. J.P. Singh, was working as Assistant Commissioner (Drawback), he has no role in respect of the export of the goods. The goods were to be exported for which Sh. S.N. Ojha was in charge as Shri Ojha was working as Assistant Commissioner, Export. As per the procedure when the Let Export Order was passed by export wing and the goods were cleared for export as Assistant Commissioner (Drawback), has to be sanctioned the drawback claim after verifying the contents from the shipping bill. It is also come on record when the investigation started, Sh. J.P. Singh directed the bank where the amounts of drawback was deposited not to release the amount to the exporter. In the impugned order, the adjudicating authority held that there is no proof of monetary flow back of the export proceeds or draw back from Rajesh Kumar to Shri J.P. Singh. The adjudicating authority only held that Sh. J.P. Singh liable on the ground that on the basis of circumstantial evidence connivance of Sh. J.P. Singh is established to claim the higher rate of draw back by misdeclarating the goods. In these circumstances, in view of the finding that there is no financial flow back of the export proceeds to the present appellant and he was not workings as Assistant Commissioner (Export). His duty was only to sanction the drawback claim after the order regarding export of the goods passed as per the procedure, therefore, we find that the imposition of penalty on Sh. J.P. Singh is not sustainable and set aside. The appeal filed by Shri J.P. Singh i.e. Appeal No. C/424/03 is allowed. (emphasis added)
6. The order of CESTAT has not been challenged by the Respondents anywhere and it has thus become final.
7. It has also been urged by the learned counsel for the Applicant that he (the Applicant) has been denied the protection available to him under Section 155 of the Customs Act. The Section is extracted below :
Section 155. Protection of action under the Act (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.
(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a months previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause. Reliance has been placed on Castao Fernandes Vs. State at the instance of DSP, CBI, Bombay, 1996 (82) ELT 433 (SC).
8. Pointed reference has been made by the learned counsel for the Applicant to the list of documents and the list of witnesses appended to the memorandum of charge. The list of documents includes statements made by Satish Gupta, Zaki Anwar, Lovkesh Sharma, Joseph Kuok, S.N. Ojha, Rakesh Swarup Tandon and Rajesh Bhasin recorded by various authorities, behind the Applicants back. None of them is included in the list of witnesses. It is forcefully contended that it will be total violation of the principles of natural justice to take on record the statement of witnesses without giving the Applicant an opportunity to confront and cross-examine them. The argument is that the charge against the Applicant will succeed or fail solely on the testimony of the persons whose statements, recorded by different officers of the Applicants department, during the course of enquiry under the Customs Act, have been listed in the list of relied upon documents. It would be in total violation of the principles of natural justice not to give the Applicant an opportunity to examine and cross examine them on various aspects of their statements.
9. The incident, for which the charges have been framed occurred in the year 1998. While the show cause notice was issued under the Customs Act in 1999, disciplinary proceedings were not initiated. Even as the Applicant was placed under suspension on 7.03.2000, which lasted till March 2001, there was no contemplation of disciplinary enquiry. The CBI also initiated enquiries, which were dropped. The incident was in the knowledge of the Respondents. Still no action was taken to proceed against the Applicant departmentally. It is only when the Departmental Promotion Committee (DPC) was to meet to consider the promotion of the Applicant and his peers, the charge-sheet was brought out of the closet and served to him. The learned counsel for the Applicant would contend that the Respondents have failed to explain the inordinate delay in issuing the memorandum of charge and it would clearly reveal the designs of some interested person to stall the Applicants promotion.
10. Mr. Ashwini Bhardwaj, learned counsel for the Applicant has cited the judicial precedents of Sher Bahadur Vs. Union of India and others, (2002) 7 SCC 142, P.V. Mahadevan Vs. M.D., T.N. Housing Board, (2005) 6 SCC 636, State of A.P. Vs. N. Radhakrishnan, (1998) 4 SCC 154, Bharat Singh Vs. Union of India and others, OA Number 2510 of 2006, decided on 12.09.2007, Union of India and others Vs. Naman Singh Shekhawat, JT 2008 (4) SC 150, Union of India and others Vs. R.D.Gupta, Sunil Gulati and others Vs. R.K.Vohra and 2006 TIOL 438-HC-DEL-COFEPOSA in support of various contentions.
11. The Respondents have, per contra, contested the claim of the Applicant. The learned counsel for the Respondents has raised the contention that the OA is misconceived, as no cause of action has arisen for the Applicant by the service of the memorandum of charge. It is stated that examining of correctness of charges, particularly at the stage of framing of charges is beyond the scope of judicial review. Reliance has been placed on Union of India and others Vs. Upendra Singh, (1994) 3 SCC 357; Union of India and another Vs. Kunisetty Satyanarayana, (2006) 12 SCC 28; Municipal Corporation of Delhi and Another Vs. R.V. Bansal, (2006) 130 DLT 235 (Delhi High Court); Dy. Inspector General of Police Vs. K.S. Swaminathan, (1996) 11 SCC 498; State of Punjab Vs. Ajit Singh, (1997) 11 SCC 368; Shri Dal Singh Vs. Union of India and others, OA number 340/2008; and Secretary to Government, Prohibition and Excise Department Vs. L. Srinivasan, (1996) 3 SCC 157.
12. As to the argument on behalf of the Applicant that the statements of certain persons in the enquiry under the Customs Act have been relied upon in departmental enquiry in the list of documents without including them in the list of witnesses, the learned counsel for the Respondents has argued that under Section 108 of the Customs Act, 1962, the proceedings of enquiry under that Act are deemed to be judicial proceedings and it is not necessary to call the persons whose statements have been recorded under Section 108 of the aforesaid Act as witnesses in departmental proceedings. Section 108 of the Customs Act, 1962 is extracted below :
108. Power to summon persons to give evidence and produce documents (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.
(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required.
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code.
13. It has also been submitted on behalf of the Respondents that the CBI had registered a case vide RC No.DAI/A 1999-0025 dated 14.09.2001 but on completion of the enquiry, did not recommend any action. Paragraph 14 of the counter reply in this regard is reproduced below :
14. That apart from the DRI, the Directorate General of Vigilance, Customs & Central Excise and the CBI also conducted investigation of the case. The CBI registered a case against the Applicant vide RC No.DAI/A1999-0025 dated 14.09.2001 and on completion of the investigation, the CBI had not recommended any action and stated that the department to take appropriate action against Shri J.P. Singh in terms of DRIs findings. The matter was referred to CVC who after going through records of the case, vide their OM No.99/CEX/059 dated 26.07.2005 recommended RDA for major penalty against the Applicant and other officers. The Competent Authority, thereafter, ordered for holding an inquiry against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965 vide Memorandum of Charges dated 19.05.2006. The argument of the learned counsel is that the delay in serving the charge sheet has occurred because the enquiry by the DRI took time and the order of punishment passed by the Commissioner of Customs was challenged before the CESTAT, which was decided only in 2005. It was only after this, the memorandum of charge was issued to the Applicant. It is the argument of the learned counsel defending the Respondents that the delay in issuing the memorandum of charge has been explained. He would, therefore, contend that the memorandum of charge cannot be contested on the grounds of delay. Reliance has been placed on Bal Krishan Vs. Food Corporation of India, 2002 (4) SCT 1020 (Punjab and Haryana HC); Jagbir Singh Vs. Food Corporation of India & Ors., 2002 (4) SCT 943 (Punjab & Haryana High Court); and B.D. Luthra (Mr.) Vs. Chairman & Managing Director, Punjab National Bank, 2004 V AD (Delhi) 229.
12. Yet another submission on behalf of the Respondents is that the Applicant should plead before the Enquiry Officer, how the delay in issuing the memorandum of charge has caused prejudice and it would be that authority who would take a view on this. Reliance has been placed on the Government of Andhra Pradesh and Ors. Vs. V. Appala Swamy, 2007 (1) SCALE 1.
13. We have given our anxious consideration to the arguments of the parties counsel and have minutely perused the record placed before us with their assistance.
14. We have noted the arguments of the counsel for both sides in so far as the merits of the charges are concerned. However, it is clear that considering the charges on merits is beyond the scope of judicial review, as held by the Honourable Supreme Court in several cases including the cases cited by the learned counsel for the Respondents, which have been adverted to in the preceding paragraph 11. We are steering clear of the merits of the case and shall only consider the delay in initiating the departmental proceedings.
15. The Honourable Supreme Court has considered the issue about the delay in issuing the chargesheet after considerable delay in a catena of cases. In State of Madhya Padesh Vs. Bani Singh and Another, (1991) 16 ATC 514, while considering the order of the Tribunal quashing the chargesheet because of delay of 12 years in issuing the chargesheet, the Honourable Supreme Court held thus:
4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal. The facts in P.V.Mahadevan Vs. M.D, T.N. Housing Board, (2005) 6 SCC 636 were that disciplinary action was proposed against the petitioner in the year 2006 for some alleged misconduct in the year 1990. The Honourable Supreme Court considered the precedents of Bani Singh (cited supra), adverted to above and State of A.P. Vs. N.Radhakrishnan, (1998) 4 SCC 154. Paragraph 19 of N. Radhakrishnan has been quoted in the judgement in P.V.Mahadevan (cited supra), as reproduced below:
19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. 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 the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations." (emphasis added) The Honourable Supreme Court upheld the order of the Tribunal quashing the chargesheet on the ground that there was hardly any explanation worth considering as to why the delay occurred. The Honourable Supreme Court, following N. Radhakrishnan (cited supra) held thus in P.V.Mahadevan (supra):
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. (emphasis added) In State of Punjab Vs. Chamanlal Goel, 1995 (2) SCC 570, the Honourable Supreme Court considered a similar case of delay in initiating departmental proceedings and held thus in paragraph 9:
9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. (emphasis added) In Meera Rawther Vs. State of Kerala, 2001 (1) SLR 518, the Honourale High Court of Kerala held thus:
13. The Court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar Vs. Y.B. Zala and others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a pre-vision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore, will constitute denial of reasonable opportunity to show cause and that would amount to violation of the principles of natural justice. (emphasis added) In B. Loganathan Vs. Union of India, 2001 ATJ 289, the Honourable High Court of Madras held that:
.Under these circumstances, and on the facts and circumstances disclosed, I hold that the un-explained inordinate delay will constitute denial of reasonable opportunity to the petitioner to defend himself that it would amount to violation of principles of natural justice and as such, the impugned charge memo must be struck down on the ground alone. By weighting all the factors both for and against the petitioner/ delinquent officer quashing the charge memo is just and proper in the circumstances. In the case of Baldev Kumar Singhal Vs. State of Rajasthan and another, 1997 (7) SLR 255, the Jaipur Bench of Rajasthan High Court observed:
The petitioner has been chargesheeted after a delay of more than 12 years when he was to be considered for the next promotion. It does speak volumes and the contention of the petitioner cannot be rejected straightway that some one was playing mischief against him so that the petitioner can be deprived of his promotion. (emphasis added) In Rajbir Singh Gill Vs. State of Punjab and Another, 1999 (7) SLR 422, the Honourable Punjab and Haryana High Court observed as follows:
.In the peculiar circumstances detailed above, we have no hesitation, whatsoever, to hold that the initiation of the departmental proceedings in the instant case after the lapse of a period of 11 years was clearly arbitrary, specially in the light of the fact that the alleged incident came to the knowledge and notice of the authorities immediately on its occurrence. We are also of the opinion that holding of a departmental enquiry at such a belated stage would deprive the petitioner of a reasonable opportunity to defend himself, as with the passage of time, he would have certainly forgotten various vital issue connected with the aforesaid incident. (emphasis added) In Irfan Ahmad, Jt. Commissioner of Central Excise Vs. Union of India and Others, OA No.689/2005, the Bombay Bench of the Tribunal, in a similar case, held as follows by order dated 26.07.2006:
29. On perusal of reply of the respondents we do not find any explanation rendered for inordinate delay. The delay remains unexplained. In the facts and circumstances of the case this delay is unreasonable, unexplained and inordinate. Due to this delay we are of the considered view that the applicants defence has been jeopardized as at this point of time it would not be possible for the applicant to make defence witnesses available and by a test of common prudent man no one is expected to remember dates and events happened in the past particularly after a long time. The holding of departmental enquiry at such belated stage would deprive the applicant reasonable opportunity to defend himself as by passage of time he would have certainly forgotten various vital issues connected with the aforesaid incident. The Honourable Delhi High Court, in Delhi Development Authority Vs. D.P.Bambah, in LPA No.39/99 decided on 29.10.2003, as quoted in the order dated 6.12.2006 in OA No.2229/2005, Sushil Kumar Bedi, ACP Vs. Union of India and Others, enunciated the principles, on the basis of various judgements of the Honourable Supreme Court, to be applied to the cases where charge sheet is sought to be quashed on the ground of delay in issuing charge sheet thus:
15. In our opinion the legal position, when an action is brought seeking quashing of a charge-sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalised as under :
(i) Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is no period of limitation for initiating the disciplinary proceedings.
(ii) Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charge-employee, courts would be entitled to intervene and grant appropriate relief where an action is brought.
(iii) If bona fide and reasonable explanation for delay is bought on record by the disciplinary authority, in the absence of any special equity, the court would not intervene in the matter.
(iv) While considering these factors the court has to consider that speedy trial is a part of the facet of a fair procedure to which every delinquent is entitled to vis-`-vis the handicaps which the department may be suffering in the initiation of the proceedings. Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.
(v) In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge-sheet unless, of course, the right of defence is found to be denied as a consequences of delay.
(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.
(vii) The sword of Damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time. Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry.
16. We have also considered the judicial precedents cited by the learned counsel for the Respondents. In Municipal Corporation of Delhi and Another Vs. R.V. Bansal, 130 (2006) DLT 235 (DB), the Honourable Delhi High Court noted that:
20. In our opinion, the delay in submitting the charge-sheet has been explained in the additional affidavit filed by the DDA in the writ petition. Apart from that, there were other delinquents who were involved in the said case/ contract belonging to other departments and hence there was delay in getting replies. However, the Vigilance Department after getting information from the officials and persons concerned started preparing the charge-sheet in December 1998 and sent the same to the DDA for serving on the respondents. In these circumstances, in our opinion the learned Single Judge erroneously quashed the charge sheet. The Court held that there was no extraordinary delay on the part of the Delhi Development Authority and hence refused to interfere with the chargesheet.
In L. Srinivasan case (cited supra) the charges related to the offences of embezzlement and fabrication of false records etc. The Honourable Supreme Court, therefore, observed that enquiry in such cases was bound to take time and had to be conducted secretly. The order of the Tamil Nadu Administrative Tribunal quashing the charge sheet on grounds of delay was set aside.
In V. Appala Swamy (cited supra), the facts are that Appala Swmay, respondent before the Honourable Supreme Court was served several charges of misconduct on or about 18.07.1990. A departmental enquiry was initiated. The enquiry officer submitted his report on 8.01.1992. However, before any action could be taken on the basis of the report, the respondent retired on 30.06.1992. A notice was served on the Applicant why part of his provisional pension should not be withheld. The respondent, V. Appala Swmay filed his reply on 20.11.1997. Meanwhile, an Original Application was filed by him before the Andhra Pradesh Administrative Tribunal, which directed the State, by its order dated 17.04.2003, to conclude the departmental proceedings within three months. The respondent (V.Appala Swamy) approached the High Court against the order of the Andhra Pradesh State Administrative Tribunal. The High Court directed the State Government to pay to the Applicant full pension from the date of his retirement with 12 per cent interest. The issue before the Honourable Supreme Court, as observed in paragraph 8 of judgment, was whether the High Court was justified in giving the above directions only on ground of [delay in] concluding the departmental proceedings. It is in this context that the Honourable Supreme Court observed in paragraph 12 of the judgment that prejudice caused to the Applicant by delay in concluding the departmental proceedings has to be pleaded by the employee before the inquiry officer. It is not about delay in serving the charge sheet. This judicial precedent would, therefore, not apply to the case in hand.
In Bal Krishna case (cited supra), the Honourable Punjab & Haryana High Court held, following State of AP Vs. N.Radhakrishnan (cited supra) that each case of delay has to be examined on facts and circumstances of each case and delay by itself cannot be a ground for quashing the proceedings. In Jagbir Singh (cited supra), the Honourable Punjab and Haryana High Court held thus in paragraph 7 and 8 :
7. At the cost of the repetition, we may refer to the case of Abdul Rehman Antulay v. R.S. Naik, JT 1991 (6) SC 431, which was followed with approval by the Honble Apex Court in the case of State of Punjab v. Chaman Lal Goyal, JT 1995 (2) SC 18, applying those principles to departmental enquiry and holding that delay in departmental proceedings necessarily must not result in quashing of the charge sheet. The Court held as under :-
At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to court not make such other appropriate order as it finds just and equitable in the circumstances of the case.
8. Delay is not always fatal and particularly at the stage of serving the charge sheet. These factors can be taken into consideration even at the stage of final determination. Reference can be made to the judgment of the Supreme Court in case K. Jayaraman v. Superintendent of Police, Erode and another, 1991 (2) Labour Law Journal 5. As huge public money is involved, it will be no way in the interest of justice or public interest to quash the charge sheet merely on the ground of delay alone, more so and as it appears from the record before us the case is based upon documents. In reply to the charge sheet, petitioner has already raised the issue with regard to benefit that ought to accrue to the petitioner as a result of non-availability of some documents and denial of joint inspection which should have been available to him in the year 1990 as alleged. The enquiring authority and as well as disciplinary authority are duty bound to consider such plea and its effect on the departmental proceedings. Keeping in mind the entirety of the facts and circumstances of the present case, we are of the considered view that it is not an appropriate case where the Court should quash the charge sheet. On the contrary, we will leave for the department/competent authority to consider all the pleas raised by the petitioner and even their effect. In B.D. Luthra (cited supra) the Applicant was proceeded against departmentally in 1996 for some misconduct during 1991 to 1994 when he was posted in Minto Road Branch of the Punjab National Bank from where he had been transferred. Delay in issuing charge-sheet was one of the grounds taken. The Honourable Delhi High Court observed thus:
29. Charge-sheet was issued to the petitioner on 25.3.1996. The allegations pertained to the years 1991 to 1994. Allegations would reveal that misdemeanour surfaced when the accounts became sticky. In the facts and circumstances, I do not find any delay, much less inordinate delay in issuing the charge-sheet. In any case, the petitioner has neither averred nor established any prejudice caused to him by the issuance of charge-sheet in the year 1996. The first submission made by counsel for the petitioner is accordingly negated.
17. In the instant OA, the detailed show cause notice was issued on 3.12.1999, after investigation by DRI in 1998. CBI also conducted investigations but found nothing incriminatory against the Applicant. The Applicant was also placed under suspension in the year 2000. During this period, all the records of the case and the witnesses were available. The Respondents have failed to explain why disciplinary proceedings could not be initiated at this time especially considering the fact that the DRI was able to issue a detailed charge sheet. Also, investigations by the CBI also would have yielded some material on the basis of which departmental enquiry could have been initiated, if the Respondents so desired. The case under the Customs Act, 1962 culminated in punishment in August, 2003. Even then the Respondents have not moved, although such advice was rendered by the CBI. There was no need for the Respondents to wait for the decision in appeal before CESTAT, in which, in any case, the order of punishment was set aside. We do not think that the Respondents have been able to explain the delay in issuing the charge sheet.
18. It is also observed that the case against the Applicant is founded largely on statements of various persons whose statements in previous enquiries, recorded in the absence of the Applicant, have been listed as relied upon documents. The list of documents by which the Articles of Charge are proposed to be proved, as appended at page 45 of the paper book is reproduced below:
1. Copies of 100 Shipping Bills (as per list in Annexure-A).
2. Panchnama relating to examination/seizure of goods by DRI.
3. Statement of Shri Satish Gupta dated 12.02.1999, 16.02.1999, 04.03.1999, 12.03.1999 and 26.03.1999 made before Shri M.N. Mhatre, SIO, DRI.
4. Statement of Shri Satish Gupta dated 11.05.1999 made before Shri A.L. Vartak, SIO, DRI.
5. Statement of Shri Zaki Anwar dated 09.02.1999, 10.02.1999 made before Shri M.N. Mhatre, SIO, DRI.
6. Statement of Shri Zaki Anwar dated 04.05.1999 made before Shri A.L. Vartak, SIO, DRI.
7. Statement of Shri Zaki Anwar dated 14.09.1999 made before Shri R.K. Pardeshi, SIO, DRI.
8. Statement of Shri Lovkesh Sharma dated 09.03.1999, 12.03.1999 and 15.03.1999 made before Shri M.N. Mhatre, SIO, DRI.
9. Statement of Shri Joseph Kuok dated 16.02.1999, 17.02.1999 and 26.03.1999 made before Shri M.N. Mhatre, SIO, DRI.
10. Statement of Shri Joseph Kuok dated 26.08.1999 made before Shri R.K. Pardeshi, SIO, DRI.
11. Statement of Shri S.N. Ojha dated 19.02.1999. 07.04.1999 and 08.04.1999 made before Shri H.R. Garg, A.D., DRI.
12. Statement of Shri S.N. Ojha dated 25.08.1999, 30.10.1999 made before Shri Anurag Bakshi, AD, DRI.
13. Statement of Shri J.P. Singh dated 20.10.1999 made before Shri Anurag Bakshi, AD, DRI.
14. Statement of Shri J.P. Singh dated 21.04.1999 made before Shri H.R. Garg, AD, DRI.
15. Statement of Shri J.P. Singh dated 15.09.1999 and 16.09.1999 made before Shri Anurag Bakshi, AD, DRI.
16. Statement of Shri Rakesh Swarup Tandon dated 09.02.1999 made before Shri M.N. Mhatre, SIO, DRI.
17. Statement of Shri Rajesh Bhasin dated 21.09.1999, 22.09.1999, 23.09.1999, 24.09.1999, 25.09.1999, 27.09.1999, 28.09.1999, 29.09.1999, 01.10.1999, 04.10.1999, 05.10.1999, 09.10.1999 and 29.10.1999 made before Shri R.K. Pardeshi, SIO, DRI.
18. Public Notice No.8/97 dated 13.8.97.
19. SCN of DRI issued vide F.No.DRI/BZU/F/10/98 dated 02.12.1999.
20. Mobile print-outs of Shri Rajesh Bhasin.
21. Mobile Print-outs of Shri J.P. Singh. The list of witnesses is also reproduced:
1. Shri M.N. Mhatre, Senior Intelligence Officer, DRI.
2. Shri A.L. Vartak, Senior Intelligence Officer, DRI.
3. Shri R.K. Pardeshi, Senior Intelligence Officer, DRI.
4. Shri H.R. Garg, Assistant Director, DRI.
5. Shri Anurag Bakshi, Assistant Director, DRI. The enormity of the Respondents fallacy is clear from the above documents. Only the statements of seven material witnesses in the departmental enquiry are proposed to be produced as documents. These statements have been recorded in 1999 by the officers mentioned in the list of witnesses. These officers cited in the list of witnesses do not have any knowledge of the incident for which the Applicant is being proceeded against departmentally. They would only prove that they recorded the statements, which are cited as relied upon documents. The Applicant would have no opportunity to confront the persons who made the statements. In our considered opinion this procedure is illegal. The persons whose statements are cited in the list of documents have to be examined in the departmental enquiry in the presence of the Applicant. Although, they have not been called as witnesses in the departmental enquiry, yet we are unable to agree with the learned counsel for the Respondents that the statements recorded under Section 108 of the Customs Act, 1962 can be taken into evidence in the departmental enquiry without giving the Applicant any opportunity to cross-examine them. It would militate against the ratio laid down by the Honourable Supreme Court in Kuldeep Singh Vs. Commissioner of Police & Ors., (1992) 2 SCC 10; Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983; and Ministry of Finance and Anr. Vs. S.B. Ramesh, SLJ 1998 (2) SC 67.
19. In Kuldeep Singh (cited supra) Honourable Supreme Court has held as follows:
31. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness. In Central Bank of India Vs. Prakash Chand Jain (cited supra) the following ratio was laid down:
The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and the statement made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles, which cannot be ignored In S.B.Ramesh (cited supra) also the Honourable Supreme Court quoted with approval the order of the Tribunal, which gave the reasons to come to the conclusion that the order of the disciplinary authority was based on no evidence and that the findings were perverse. One of the grounds on which this order of the Tribunal was based was that the applicant in that case was not given an opportunity to cross examine the witness in support of the charge. The Tribunal had held thus in this case.
Further, it is settled law that any statement recorded behind the back of a person can be make use of against him in a proceeding unless the person who is said to have made that statement is made available for cross-examination, to prove his or her veracity. The Department of Personnel and Training (DoP&T) has also prescribed in its OM No. 134/7/75-AVD.I dated 11.06.1976 (quoted in Swamys Compilation of CCS CCA Rules, Swamy Publishers (P) Ltd., Thirty First Edition, 2007, page 63) as follows:
Statement of witness recorded at the preliminary inquiry/ investigation to be read out to him and got admitted as evidence The present procedure followed in departmental inquiries held under the CCS (CCA) Rules, 1965, and other corresponding Disciplinary Rules is to disregard statements made by witnesses during the preliminary inquiry / investigation except for the purpose of contradicting the witnesses and to record the evidence of the witnesses de novo as examination-in-chief by the Inquiry Authority. The question whether statements made by the witnesses during the preliminary inquiry / investigation can be straightaway taken on record as evidence in examination-in-chief at oral inquiries has been examined in consultation with the Department of Legal Affairs, the Central Vigilance Commission and the Central Bureau of Investigation.
2. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accord with the principles of natural justice to take on record the statements made by witnesses during the preliminary inquiry/ investigation at oral inquiries, if the statement is admitted by the witness on its being read out to him. It is felt that by adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. It has, therefore, been decided that in future, instead of recoding the evidence of the prosecution witnesses de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/ investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance, i.e., at least three days before the date on which it is it come up at the inquiry. (emphasis added)
20. It is clear, therefore, that the witnesses have to be examined in the presence of the Applicant, who would be given an opportunity for cross examining them. We cannot accept the argument of the learned counsel for the Respondents that a statement recorded under Section 108 of Customs Act, 1962 could be produced in the enquiry without examining the witnesses.
21. The case against the Applicant under the Customs Act, 1962 was based on circumstantial evidence and on the statements of witnesses recorded at different times. It is because of the tenuous nature of proof against him, the Applicant succeeded before the CESTAT. Memory does not have a very long shelf life. Witnesses cannot be expected to remember details of events which are nearly a decade old. Their statements were recorded in 1999. It is certain that they cannot recall the events with any certitude after a passage of so many years. It seems to us, therefore, that it would be seriously prejudicial to the cause of the Applicant to tread on such slippery ground, after a lapse of nearly ten years now. The Respondents have further caused a delay of one-and-half-years in appointing the enquiry officer and the Presenting Officer. Prejudice is writ large in this case against the interests of the Applicant and justice.
22. In the above circumstances, the OA is allowed. The Memorandum dated 19.05.2006 declaring the intention of the appointing authority to hold disciplinary enquiry against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965 (Annex A-1) is quashed and set aside. There will be no orders as to costs.
( L.K. Joshi ) (V.K. Bali ) Vice Chairman (A) Chairman /dkm/