Central Administrative Tribunal - Ahmedabad
Rakesh Kumar Mishra vs Central Excise & Customs on 10 June, 2025
::1 :: O.A.No.588/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
O.A. No.588/2016
Dated this the 10th day of June, 2025
Ordered on: 10.06.2025
CORAM:
Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble, Dr. Hukum Singh Meena, Member (A)
1. Rajesh Kumar Mishra
S/o Shashi Shekhar Mishra
Aged: 40
Inspector,Customs Division,Jamnagar.
Residing at:Flat No. 503,Shivam Apartment,
Digjam Circle,Airforce Road,
Nr. Railway Crossing,Jamnagar - 361 004.
..........Applicant
(By Advocate: Mr. D.K. Trivedi)
Versus
1. Chief Commissioner,
Central Excise & Service Tax,
7th Floor, Central Excise Bhavan,
Nr. Polytechnic,Ambawadi,Ahmedabad - 380 015.
2. Commissioner of Central Excise & Customs,
"Central Excise Bhavan",
Race Course Ring Road,Rajkot - 360 001.
3. Commissioner & Disciplinary Authority,
Office of the Commissioner of
Central Excise & Service Tax,
Central Excise Bhavan,Race Course Ring Road,
Rajkot - 360 001.
4. Additional Commissioner (Vig)
Director General of Vigilance,
Customs & Central Excise,
2nd& 3rd Floor, Hotel Samrat,Kautilya Marg,
Chanakyapuri,New Delhi - 110 021.
..........Respondents
(By Advocate: Mr. Chirayu Mehta)
::2 :: O.A.No.588/2016
ORDER
Per : Hon'ble Shri Jayesh V. Bhairavia, Member (J)
1. In the instant OA, being aggrieved with the order dated 22.04.2015 (Annexure A/2) wherebythe Disciplinary Authority had imposed major penalty upon the applicantand also being aggrieved with the order passed by the Appellate Authority dated 29.07.2015 (Annexure A/1), the applicant has filed the present OA, under Section 19 of the AT Act, 1985, seeking following reliefs:-
8. Reliefs sought:
In view of the facts mentioned in paragraph-4 as also the ground in paragraph-5 above, the applicant prays for the following reliefs:
a) The impugned Order-In-Appeal No. 04/Chief Commissioner/Vig./2015 dtd. 29/07/2015 passed by the respondent No.1 above named may please be quashed and set aside;
b) The Order-in-Original dated 22.04.2015 passed by the Commissioner, Central Excise, Rajkot may please be quashed and set aside;
c) Show-cause bearing F.No.II/10(A)(CON)1/12-13 dtd. 11/07/2013 issued by the respondent No.3 above named may kindly be quashed and set aside;
d) The second stage advice issued from F.No.V.659/03/2011 dtd. 19/03/2015 being given by the respondent No. 4 above named may kindly be quashed and set aside;
e) The Hon'ble Tribunal may be pleased to hold that the charges being framed by charge memorandum dated 07/10/2011 being framed by the respondent No. 2 above named having not been proved against applicant, no penalty is imposable;
f) Consequential relief arising out of the aforesaid relieves mentioned at clause (a) to (d) above may kindly be granted to the applicant herein;
g) Personal hearing may please be granted to the applicant herein; and
h) Any other relief, as may be deemed fit, in the facts and circumstances of the case may be granted.::3 :: O.A.No.588/2016
2. Learned counsel for the applicant mainly submitted that:
2.1 The applicant while working as Inspector, Central Excise, Rajkot, he was served with Charge Memorandum dated 07.10.2011 (Annexure A/5) issued by the Disciplinary Authority under Rule 14 of the CCS (CCA) Rules. Alongwith the Charge Memorandum, he has been supplied with copy of Statement of Article of Charges framed against him (Annexure
-I), Statement of Imputation of Misconduct or Misbehavior in support of the said alleged charges (Annx.-II), a list of relied upon documents (Annx.-III) and list of witnesses (Annx.-IV).
The Statement of Article of charge framed against the applicant as per Annexure-I of the charge memorandum dated 07.10.2011) reads as under: -
ANNEXURE-I STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI RAJESH KUMAR MISHRA, INSPECTOR, CENTRAL EXCISE RAJKOT Shri Rajesh Kumar Mishra was posted and functioning as Inspector, Central Excise Assessment Range Kharirohar during the month of April 2010. During April-May-2010, M/s Dadi Impex Pvt. Ltd Mumbai, an export firm filed export documents for export of "Free flow salt" to be exported under Shipping Bill NO: 6414628 dated 27.04.2010 and Commercial Invoice No:
DIPL/EXPO/001/10-11 dated 19.04.2010 as well as under Shipping Bill No: 6414629 dated 27.04.2010 and commercial invoice No: DIPL/EXPO/001-A/10-11 dated 19.04.2010 through MP & SEZ, Mundra. The said exporter declared the description of goods as "Free Flow Salt". The goods covered under Shipping Bill No:
6414628 dated 27.04.2010 and Shipping Bill No: 6414629 dated 27.04.2010 were stuffed in containers bearing Nos CRSU1175761, CRSU1183155, CRSU1265330, CRSU1356604, CRSU1267678 and FBLU3090530 under the supervision of Shri Rajesh Kumar Mishra, Inspector, Central Excise, Range Kharirohar, Gandhidham.
On the basis of the specific intelligence, Officers of DRI examined the goods stuffed in above six containers on 4th/5th May 2010 in the presence of independent panchas, Shri Kamal Inderraj Gurnani and Shri Mahesh H. Tank, ::4 :: O.A.No.588/2016 "H" card holder of CHA firm M/s Rajendra Purohit. During the examination and further investigation by way of chemical tests, it was found that all these six containers partly contained "Potassium Chloride (Muriate of Potash) Fertilizer grade, a restricted commodity for export out of India in terms of Foreign Trade Policy 2009- 2014 and Notification No. 03/2009 dated 27.08.2009 issued by DGFT under Section 5 read with Section 3 (2) of the Foreign Trade (Development and Regulation) Act, 1992 (No.22 of 1992) read with para 1.3 and para 2.1 of Foreign Trade Policy 2009-2014 in addition to declared cargo of "Free Flow Salt".
Shri Rajesh Kumar Mishra, Inspector in his statement dated 20.07.2010 recorded under Section 108 of the Customs Act, 1962 before the DRI had admitted that he had not visited the factory premises of M/s Bajaj Salt Pvt.Ltd. Moti Chirai where the said goods were supposed to be stuffed for supervising the stuffing of containers and had signed Annexure- C-1 at Central Excise, Range Office, Kharirohar, Gandhidham.
In this manner, Shri Rajesh Kumar Mishra, Inspector has committed an offence of gross misconduct in his capacity as a public servant. Shri Rajesh Kumar Mishra, Inspector by his aforesaid acts displayed lack of absolute integrity, devotion to duty and conduct unbecoming of a Government servant in violation of Rule 3((1) (i), (ii) &
(iii) of CCS(Conduct) Rules 1964."
3. On receipt of the aforesaid charge memorandum, the applicant had denied the alleged charges by filing his representation before the Disciplinary Authority. Thereafter, departmental inquiry was held against the applicant and on conclusion of the same, the Inquiring Authority had submitted his inquiry report dated 21.03.2013 wherein he has recorded his findings that the charges levelled against the applicant has not been established (Annexure A/8 refer).
3.1 However, the Disciplinary Authority disagreed with the said finding of the IO and by recording separate reasons for his disagreementhad supplied the copy of the same along with the copy of the Inquiry Officer's report to the applicant herein.
::5 :: O.A.No.588/2016On receipt of the copy of the IO report and disagreement note thereon issued by the Disciplinary Authority, the applicant had submitted his representation and requested the Disciplinary Authority to exonerate him as per the findings recorded by the Inquiry Officer.
3.2 Thereafter, vide impugned order dated 22.04.2015 the Disciplinary Authority held that the charges levelled against the applicant stands proved and had imposed the following punishment:-
"(i) I order that the pay of Shri. R.K. Mishra, Inspector be reduced by four stages from Rs. 14,710/- + Grade Pay of Rs. 4600/- to Rs. 12,540/- + Grade Pay Rs. 4600/- in the time scale of pay 9300-34800 for a period of one year with effect from 22.04.2015, in terms of the provisions of Rule 11(v) of the CCS (CCA) Rules, 1965..
(ii) It is further directed that Shri. R.K. Mishra, Inspector will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will not have the effect of postponing his future increments of pay."
4. Being aggrieved, the applicant has filed statutory appeal before the Appellate Authority.Vide order dated 29.07.2015 (Annexure-I), the Appellate Authority by way ofspeaking order uphold the findings of the Disciplinary Authority to the effect that the charges levelled against the applicant has been proved.At the same time, the Appellate Authority by assigning the reasons to take lenient view in the said appeal had reduced/modified the penalty by reducing the pay of the applicant upto three stages instead of four stages.
Since the order of imposition of major penalty has been passed by the Appellate Authority, the applicant has filed the present OA.
5. Learned counsel for the applicant would argue that the IO in his inquiry report had recorded his finding that the charge levelled against the applicant that he displayed lack of ::6 :: O.A.No.588/2016 integrity, devotion to duty and conduct of unbecoming of government servant has not been proved.Since, the Disciplinary Authority in his disagreement note dated 11.07.2013 (Annexure A/3), did not mention anything about the said finding of the IO, therefore, on the said aspect (charge), the DA was satisfied with the finding of IO.However, without assigning any reason, the DA subsequently brought the element of display of lack of integrity on the part of the applicant and had believed to be proved in his final order dated 22.04.2015. Therefore, such erroneous findings of the DA ought not to have maintained by the Appellate Authority and applicant should have been exonerated from all the charges.
5.1 Further, it is submitted that the Appellate Authority in his order dated 29.07.2015, had assigned the reason for taking lenient view in the case of the applicant to the effect that the applicant was newly recruited officer and had limited exposure to the work of assessment range. Further, it has been recorded therein that the applicant was not made party to the show cause initiated under the Customs Act 1962 by the investigating agency, DRI which is an indication that the investigation did not reveal any material or circumstantial evidence so as to suggest that the applicant herein has colluded/ abetted with the exporter in act of export of 'MOP' in the guise of 'Free Flow Salt'.Therefore, the Appellate Authority ought to have maintained the findings of the Disciplinary Authority about the misconduct has been proved and ought to have quash and set aside the findings of the Disciplinary Authority instead of reduction in the penalty.
5.2 Learned counsel for the applicant further argued that since the Appellate Authority held that the negligence on the part of the applicant in discharging his official duty is without any ::7 :: O.A.No.588/2016 dishonest motive; the major penalty ought not to have been imposed upon the applicant.
5.3 In support of the aforesaid submission learned counsel for the applicant placed reliance upon the judgment passed by High Court of Judicature at Madras in the case of M.S. Narayanan Vs. CAT Madras Bench & Ors (W.P. No. 34184/2003decided on 28.08.2008)and submits that since the charge of dishonest motive on the part of the applicant has not been accepted by the Appellate Authority, the impugned order of major penalty is not tenable.
6. Per contra, on receipt of the notice issued by this Tribunal, the respondents have filed their reply and denied the claim of the applicant.
Learned counsel for the respondents submitted thatby following the principle of natural justice and by recording cogent reasons, the Disciplinary Authority as well as the Appellate Authorityconcluded that the charges levelled against the applicant stands proved and as such his negligence is stated to be proved.
7. Learned counsel for the respondents denied the claim of the applicant that once the Appellate Authority had decided to take lenient view in the appeal, therefore, the said authority ought not to have imposed major penalty upon the applicant since reduction of the pay of the applicant from four stage to three stage would also be a major penalty in terms of Rule 11(v) of CCS (CCA) Rules.
In this regard, learned counsel for the respondents further submits that since the delinquent does not have choice or say that he should be given a particular punishment, it is not open for him to claim that the penalty imposed upon should have been changed by the Appellate Authority. In other words, ::8 :: O.A.No.588/2016 since the Appellate Authority has decided to take lenient view in the appeal of the applicant, major penalty ought not to have been imposed upon him.According to counsel for the respondents,the said submission of the applicant is not tenable for the reason that the delinquent does not have any choice or say in the matter of disciplinary proceeding that he should be given a particular punishment.
7.1 It was further submitted that the priority standards for supervision over stuffing of the export cargo and drawal of samples fixed for the applicant and the Range Superintendent while attending their official work. The said responsibility on the delinquent does not exempt him to supervise over export cargo. It was submitted that the applicant by detailing the quantum of work at his place of posting is only aggravating the mistake he has made.
Further, when the applicant who is well aware about various Circulars which exempts examination of consignments under free shipping bill at the port of export on the basis of Central Excise Sealing, he should have exercised due diligence and ensure that no export cargo was stuffed without his supervision, as that is the only point where such goods meant for export are examined in consignment under free shipping bills. The Disciplinary Authority and the Appellate Authority had recorded the findings that applicant totally failed to discharge his duties with due diligence and had accordingly held that the charges levelled against the applicant stands proved.
It was submitted that without prejudice to this, if goods were not meant for examination, the applicant should have asked the exporter for adopting self-sealing procedure. Once the applicant has endorsed the examination report, he was responsible for the consequence of the same.
::9 :: O.A.No.588/20167.2 It was also submitted that the Disciplinary Authority in paragraph nos. 14.2, 14.4 and 14.5 of his order dated 22.04.2015 has elaborately discussed the lapses committed by the applicant, for example: (i) admission of the applicant that he had not visited the factory premises, where the said goods were to be stuffed and he had signed the documents at the range office itself. Even the samples were drawn and brought to the applicant by the C&F Agents. (ii) the applicant failed to attend his statutory duty with reference to examining the goods and stuffing and sealing of the consignment of the export goods at the factory premises. (iii) the said conduct on the part of the applicant facilitated the exporter to stuff restricted goods in the guise of declared goods from the premises other than for which factory stuffing permission was granted.
Therefore, the Disciplinary Authority has rightly concluded that the lapses on the part of the CO are on record and the same lead to the conclusion that he acted in an irresponsible manner and exhibited lack of devotion to duty, rendering him liable for imposition of major penalty.
7.3 Learned counsel for the respondents would also argue that by considering the material and evidence on record against the applicant, the Disciplinary Authority as well as the Appellate Authority by assigning cogent reasons correctly held that the charges levelled against the applicant stands proved and further considering the gravity of it, had imposed just and proper penalty upon the applicant. Therefore, the applicant is not entitled for any relief as sought for in this OA.
8. Heard the counsel for the parties at length and perused the material available on record.
9. It is apt to mention that the scope of judicial review in the matter of disciplinary proceedings is very limited and in this regard, it is profitable to refer the law laid down by the three ::10 :: O.A.No.588/2016 Bench judges of the Hon'ble Apex Court in the matter of State of Andhra Pradesh & Ors Vs S. Sree Rao reported in AIR 1963 SC 1723wherein it has been held that:
"....the High Court is not a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant. It is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the Rules of natural justice are not violated. Where there is some evidence, with the authority entrusted with the duty to hold inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a Writ under Article 226 to review the evidence and to arrive act an independent findings on the evidence...."
10. In B C Chaturvedi Vs UoI& Ors. reported in (1995) 6 SCC 749, the another three judges Bench of the Hon'ble Apex Court held that:-
"...the court, in a judicial review, may interfere only when the authority has conducted the proceeding in a manner inconsistent with the rule of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. Re-appreciation of evidence and nature of punishment is best left to the Appellate Authority and only when the conclusion, upon consideration of the evidence reached by the Disciplinary Authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
10.1 In the case the State of Karnataka &Anr. Vs N Gangaraj reported in (2020) 3 SCC 423 the Hon'ble Apex Court after referring catena of judgments on the point of scope of interference by the High Court and the Tribunal in exercise of power of judicial review in respect to finding recorded by the enquiring authority and the disciplinary authority, it has been held in para 14 & 15 that:
::11 :: O.A.No.588/2016Para 14 "......we do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the finds recorded by the Disciplinary Authority. It is not the case of no evidence or that the findings are perverse. The findings that respondent is guilty of misconduct has been interfere with only on the ground that there are discrepancies in the evidence of the department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct".
Para 15 "...the Disciplinary Authority agreed with the findings of the Enquiry Officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the department of authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of the facts recorded by re-appreciating evidence as if the courts are the Appellate Authority. We may notice that the said judgment is not noticed larger Bench judgments in S Sree Rama Rao and B C Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Courts suffer from patent illegality and thus can not be sustain in law."
10.2 In State of Bihar Vs Phulpari Kumari, Hon'ble Apex Court reported in (2020) 2 SCC 130 it has been held that:
"interference with the orders passed pursuant to departmental inquiry can only be in case of no evidence".
Further it has been held in the said judgment that:
"..... sufficiency of evidence is not within realm of judicial review."
11. In the present case, as noted herein above, departmental inquiry was held under Rule 14 of CCS (CCA) Rules, 1965 for major penalty against the applicant. He participated in the inquiry and had submitted his defence brief. On receipt of the ::12 :: O.A.No.588/2016 inquiry report, the Disciplinary Authority by adhering to the terms of Rule 15 of CCS (CCA) Rules, had supplied the copy of inquiry report alongwith his disagreement note thereon to the delinquent officer i.e., applicant herein. On receipt of the same, the applicant has submitted his representation and by considering the same, the Disciplinary Authority by assigning the cogent reasons held that the charge levelled against the applicants are proved and imposed major penalty upon the applicant by order dated 22.04.2015.
12. Further, it is noticed that the Appellate Authority by affording opportunity of personal hearing to the applicant and taking into consideration the grounds raised in the appeal as well as the material on record, vide impugned order dated 29.07.2015 (Annexure A/1) uphold the finding of the DA that the charge levelled against the delinquent has been proved and at the same time, had modified the penalty ordered as referred herein above. It is appropriate to reproduce the relevant findings of the Appellate Authority recorded in the said order dated 29.07.2015 which reads as under: -
"13. The disciplinary authority while deciding the disciplinary proceedings found that the charges leveled against the appellant in the Charge Memorandum were established and on that grounds, major penalty was imposed on the appellant. (Further, the appellant Shri Rajesh Kumar Mishra Inspector in his statement recorded u/s. 108 of the Customs Act, 1962 before the officers of DRI, on 20.7.2010 had admitted that he had not visited the factory premises of M/s. Bajaj Salt Pvt.Ltd., Moti Chirai where the said goods were supposed to be stuffed and had signed Annexure C-1 at Range Office. He also admitted that he was aware that the Superintendent and Inspector attending the export cargo are responsible for supervision of stuffing of exported cargo. In the appeal submission the appellant has not denied the basic allegation of negligence of duties. The defence contentions are that the jurisdiction of Assessment Range Kharirohar was spread over more than 100 Kms and the Range had heavy and strenuous work load; that, the lapse occurred on account of pressure of work; that, Free Flow Salt being non excisable goods ::13 :: O.A.No.588/2016 and that export was under free shipping bill without any export incentives and considering the status of exporter M/s. Dadi Impex, physical supervision over the stuffing of container for export was given the least priority; that, there is visible similarity in the appearance of 'Free Flow Salt' and the restricted goods 'MOP', as such, mere supervision is not sufficient for identifying such packaged goods. I find that all these contentions have been discussed in detail by the Disciplinary Authority in her Order. I, am therefore, not delving into it.
14. Further, I find that pressure of work or being the only officer at the material time cannot be a legitimate excuse to justify failure to carry out the assigned duties. The appellant is expected to be aware of the significance of the requirement of physical supervision by Central Excise Officer as mere presence of the executive Officer would have abstained the exporter of any misdemeanor. In this case, the appellant had signed the export documents at range office in token of having supervised the stuffing and sealing of the export cargo, without physically supervising the stuffing. Also the samples were drawn and brought to the appellant by the C&F agents at his office premises. Thus, I find that the Disciplinary Authority has rightly confirmed that this act of the appellant amounts to serious dereliction of duty which provided a free hand to the exporter to stuff restricted goods against the declared goods, at a place other than the one for which the exporter had sought factory stuffing permission.
15. The appellant has in his submission filed stated that DA has erred in imposition of major penalty in violation of instructions and guidelines issued by D.G.P&T letter No.6/19/72-Disc.I dated 29.11.2012 for imposition of major penalty. However, the types of cases which may merit action for imposing one of the major penalties are listed in the said instruction of D.G.P&T., are only illustrative. The entry appearing at Sr.No. 3 is reproduced below:
"3. Gross irregularity or negligence in the discharge of official duties with a dishonest motive."
16. However, I find that above text was appearing at Para 11.4 (iii) of Chapter X of the Vigilance Manual Vol.I, later substituted by the CVC vide letter No.99/VIG/62 dated 29.11.1999 and Para 11.4(iii) now read as follows:
"The case involving any of the lapses such as gross or willful negligence, recklessness, exercise of discretion without or in excess of powers/jurisdiction, causing undue loss to the organisation or a concomitant gain to an ::14 :: O.A.No.588/2016 individual, and flagrant violation of systems and procedures".
17. Further, referring to the judgement in the case of UOI and Ors vs. Ahmad 1979 AIR 1022, 1079 SCR(3) 504, the appellant submitted that misconduct means misconduct arising from ill motives. Acts of negligence, errors of judgement or Innocent mistake do not constitute such misconduct. I have gone through the quoted judgment and I find that the issue involved in the referred case is that of lack of efficiency, lack of foresighted and indecisiveness. It does not deal with flagrant violation of systems and procedures. Hence, the facts of this case are not applicable to the case.
18. However, the facts of the case indicate that Shri Rajesh Kumar Mishra was newly recruited officer and had limited exposure to the work of assessment Range. It is also noticed, that the appellant was not made party to the SCN proceedings initiated under the Customs Act, 1962 by the investigating agency, DRI, which is an indication that the investigation did not reveal any material or circumstantial evidence so as to suggest that Shri Mishra has colluded/ abetted with the exporter in act of export of 'MOP' in the guise of 'Free Flow Salt'. In view of the foregoing, the appeal needs to the considered taking a lenient view.
In view of the above discussion, I pass the following order :-
ORDER
i) I uphold the findings of the DA holding that the charges leveled against Shri Rajesh Kumar Mishra, Inspector in charge memorandum dated 07.10.2011 issued from F.No.II/8(VIG)2/2010-11 have been proved.
ii) But in view of the appeal and submissions made by Shri Rajesh Kumar Mishra, I reduce the penalty imposed from four stages to three stages from the pay of Rs.14,710/- + Grade Pay of Rs.4600/- in the time scale of pay 9300-34800 +4600 to Rs. 13070/- + Grade Pay of Rs.4600/- for a period of one year from 22.04.2015 to 21.04.2016 under Rule 11(v) of CCS (CCA) Rules, 1965. It is further ordered that Shri Rajesh Kumar Mishra, Inspector will earn increments of pay during the period of reduction and that on the expiry of the above period; the reduction will not have the effect of postponing his future increments of pay. The penalty stands modified to that extent."::15 :: O.A.No.588/2016
12.1 On perusal of the said order dated 29.07.2015, it is noticed that the Appellate Authority had dealt with each and every contention raised by the applicant in the appeal and by assigning cogent reasons had confirmed the findings of the Disciplinary Authority that the act of the applicant amounts to serious dereliction of duty which provided a free hand to the exporter to stuff restricted goods against the declared goods, at a place other than the one for which the exporter had sought factory stuffing permission.
Further, by referring the statement of the applicant recorded under the Customs Act, 1962, before the officers of DRI, dated 20.07.2010 (which is also part of relied upon document no. 18 in the charge memorandum dated 07.10.2011) held that the applicant had admitted that he was aware that Superintendent and Inspector attending the export cargo are responsible for supervision of stuffing of export cargo. The Appellate Authority had also upheld the finding that the charges levelled against the applicant are established.
At the same time, the Appellate Authority by considering the fact that the applicant was newly recruited officer and has limited exposure to the work of assessment range and he was not made party to the show cause notice proceeding instituted under the Customs Act, 1962 by the DRI and therefore, had decided to take lenient view in the case of the applicant and accordingly, the Appellate Authority interfered with quantum of punishment and had reduced the penalty from four stage to three stage vide order dated 29.07.2015.
12.2 Thus, from the above, it can be seen that by following the provisions stipulated in Rule 14 and 15 of the CCS (CCA) Rules, as well as the principle of natural justice, the Disciplinary Authority passed an order dated 22.04.2015 as well as the Appellate Authority passed an order dated 29.04.2015. It ::16 :: O.A.No.588/2016 cannot be said that it is a case of "No evidence". Thus, in absence of any contrary material to it, we do not find any legal infirmities in the decision making process while passing the impugned orders by the Disciplinary Authority as well as by the Appellate Authority.
13. The submissions of learned counsel for the applicant that the Appellate Authority ought not to have imposed major penalty since the said authority had assigned reason to take lenient view in the appeal of the applicant and accordingly reduced the penalty which is major in nature, the said submission in our considered view is also not tenable.
It is noticed that by assigning cogent reasons, the Appellate Authority has recorded the finding that the charge of misconduct levelled against the applicant and had also assigned the reason to deny the claim of the applicant that the DA has erred in imposition of major penalty by referring the updated instructions stipulated in para 11.4 of chapter X of the vigilance manual Vol.1based on the CVC letter no. 99/vig/62 dated 29.11.1999. Thereafter, by recording the separate reason, the Appellate Authority find it appropriate tomodify the penalty order from four stage to three stage in reduction of pay of the applicant. At this stage, we are in agreement with the submission of learned counsel for the respondents that the delinquent does not have any choice or say in the matter of disciplinary proceeding that he should be given a particular punishment.
Accordingly, the claim of the applicant to change the impugned penalty order is not acceptable.
13.1 Even otherwise, the submission of the learned counsel for the applicant to interfere with the quantum of punishment imposed by the Appellate Authority is not acceptable in light of the law laid down by the Hon'ble Apex Court in the case of Govt. of ::17 :: O.A.No.588/2016 A.P. v. Mohd. Nasrullah Khan,(2006) 2 SCC 373 wherein while dealing with issue of Court/Tribunal to interfere with the order passed by Disciplinary Authority and the quantum of punishment had referred the judgment passed by the Hon'ble Apex Court in the matter of Union of India Vs Parma Nanda reported in (1989) 2 SCC 177 and held as under:
"12. We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In Union of India v. Parma Nand, K. Jagannatha Shetty, J., speaking for the Bench, observed at SCC p.189, para 27 as under:
"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
13.2 Further, it is suffice to state that the judgment relied upon by the counsel for the applicant is not helpful to him in facts and circumstances narrated herein above.
14. Thus, by keeping in mind, the law laid down by the Hon'ble Apex Court in various judgments as referred herein above and facts of the present case as discussed, we are declined to ::18 :: O.A.No.588/2016 interfere with the findings of the facts recorded by the Disciplinary Authority as well as the Appellate Authority.
Further, we are of the considered opinion that the punishment imposed by the Appellate Authority cannot be said to be disproportionate with a gravity of misconduct. Therefore, we decline to interfere with the quantum of punishment as awarded by the Appellate Authority.
15. In view of the aforesaid, the OA stands dismissed. There shall be no order as to costs. MA if any, pending also stands disposed of.
(Dr.Hukum Singh Meena) (Jayesh V Bhairavia) Member (A) Member (J) PA/PV