Central Administrative Tribunal - Delhi
Man Singh vs Union Of India on 25 March, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No. 3366/2012 Reserved On:19.02.2014 Pronounced on:25.03.2014 Honble Shri G.George Paracken, Member (J) Honble Shri P.K. Basu, Member(A) Man Singh Age 59 years S/o Late Shri Jagan Prasad R/o A-5F, MIG Flats, Mayapuri, New Delhi-110064. ..Applicant (By Advocate: Shri Pramod Gupta) Versus Union of India Through Secretary, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, 6th Floor, HUDCO, Vishala Building, Bhikaji Cama Place, New Delhi-110066. ..Respondents (By Advocate: Shri R.N. Singh) ORDER
Shri G. George Paracken:
The applicant in this Original Application has challenged the orders passed in the inquiry proceedings initiated against him which culminated in the imposition of penalty of reduction to the next lower post in the scale of pay of Rs.9300-34-800 grade pay of Rs.4800 till his retirement.
2. The brief facts of the case are that the applicant was proceed against under Rule 14 of the CCS (CCA) Rules, 1965 vide memorandum dated 16.08.2012 for the alleged misconduct committed by him while functioning as Assistant Commissioner, Central Excise, Division-1, Indore during the year 2002-03. The article of charges framed against him were as under:-
ARTICLE-I That Shri Man Singh while working as Asstt. Commissioner, Central Excise Division, Indore during 2002, conducted verification of the ground plan, produced by M/s. Ruchi Soya Industries, Mangliagaon (here-in-after referred to as RSIL) for obtaining the Registration for Customs Private Bonded Warehouse (falling under the jurisdiction of Central Excise Range-V, Indore) on 18.09.2002. Shri Man Singh, Asstt. Commissioner certified that there was a single Pipeline from the Railway siding to the Tank No. 96 i.e. Private Bonded Warehouse. However the investigation revealed that there are more than one pipeline going towards another tank through single pump house in the same factory and also to the another factory of the same management. The need of the single pipeline was specifically indicated in the letter issued by Shri Man Singhs predecessor in order to rule out any possibility of diversion of imported oil. However, Shri Man Singh, Asstt. Commissioner gave a wrong verification report to improperly accommodate M/s. RSIL.
Further, even though the storage capacity of the Tank no. 90 in the bonded warehouse was 3500 M.Ts. but RSIL furnished a warehousing bond for Rs. 3.34 crore with Bank Guarantee of Rs. 42 lacs to store only 1500 M.Ts of imported oil which was accepted by Shri Man Singh, Asstt. Commissioner. The warehousing and ex-bonding of the imported oil were made on the basis of photostate copy of in-bond bill of entry and shipping bills produced by the party and no efforts were made to collect original copy of the same or obtain verification report from Customs, Jamnagar. Through aforesaid acts of commission and omission, said Shri Man Singh has dishonestly accommodated the vested interest of M/s. RSIL, thereby endangering Govt. Revenue. He has, thus, failed to maintain absolute integrity, displayed lack of devotion to duty and depicted a conduct unbecoming of a Govt. servant and, thereby, contravened the provisions of Rule 3(1)(i),(ii) and (iii) of Central Civil Services (Conduct) Rules, 1964.
ARTICLE-II That Shri Man Singh while functioning as Assistant Commissioner, Central Excise Division-I, Indore during the period from August, 2002 to April, 2003 without any direction/authority had posted Shri G. K. Bhatnagar, Inspector (Tech) and Shri Tejram Mourya, Sepoy both of Division office, Indore on cost recovery basis to attend the work relating to warehousing of Imported goods and clearance thereof in the private bonded warehouse M/s RSIL instead of allowing the concerned Range staff to do so. Moreover, a letter dated 19.03.2003 was issued to the party asking them to make payment of Rs.26,895/- towards salary of the officers posted on cost recovery basis.
Shri Man Singh, AC had also entrusted the day to day correspondence job in this regard to aforesaid Shri Bhatnagar of the Division office and directed him not to route the files through the Superintendent (Tech). None of the letter received from the party were got entered in the Divisional Inward register with malafide intention so that no other officer could know that some financial accommodation was being provided to the M/s RSIL at the cost of Govt. revenue.
By aforesaid acts of commission and omission, said Shri Man Singh has failed to maintain absolute integrity and devotion to duty and displayed a conduct unbecoming of a Govt. servant and thereby, contravened the provisions of Rule 3 (1) (i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-III That while Shri Man Singh was working as Astt. Commissioner, Central Excise Division-I, Indore during the period from August, 2002 to April, 2003 the warehouse goods i.e edible grade crude palm oil involving Customs duty amounting to Rs.2.61 crores were cleared for home consumption against Release Advice which was in favour of another party i.e. M/s Dynacom Trading Co. Pvt. Ltd. (her-in-after referred to as DTPL). The said goods were not sold on highsea sale basis but in order to manipulate the affair, the said goods were shown to have been sold on high sea sale basis with the connivance of the Shri Man Singh, AC with a view to enabling the party to avoid payment of Govt. Revenue to the extent of Rs.2.61 crores by entertaining improper Release Advices produced by the parties and thus also helping M/s RSIL to evade commercial Tax. Shri Man Singh, Asstt. Commissioner also did not take any action for recovery of Customs Duty on account of shortage of found during the warehousing of palm oil and also failed to recover interest leviable on delayed clearances of the impugned goods at the time of ex-bonding. Shri Man Singh, AC has, therefore, not taken any steps either to safeguard the duty amounting to Rs.2.66 crores or recover the same and other dues leviable.
Therefore, Shri Man Singh, AC by applying the aforesaid modus operandi by allowing clearances on he basis of improper Release Advices pertaining to the other party, by not charging duty on the shortages and by not recovering interest on delayed clearances provided financial accommodation to the parties. Shri Man Singh, AC has failed to maintain absolute integrity and devotion to duty, and acted in a manner unbecoming of a Government servant, and thereby it has contravened provisions of Rule 3 (1) (i), (ii) and (iii) of CCS (Conduct)Rules, 1964.
3. The annexure A-3 list of 14 documents was also annexed with the aforesaid memorandum by which the aforesaid article of charges against the applicant were proposed to be sustained. However, there were no listed witness in the Annexure A-4 attached to the aforesaid memorandum. The Inquiry Officer, vide his report dated 01.04.2000, after an inquiry in the matter held that the charges have been proved. The findings of the inquiry officer in respect of each of the article of charge are as under:-
Article-I I have gone through the submissions of the Presenting Officer and the Charged Officer. I have gone thorough the in-bond Bill of Entries as mentioned in the chargesheet (Exhibit No.8) and I find that none of these have been singed by the C.O. I find that as per reply to Q.No. 10 of statement dated 2/4/03 and Q. No.8 of statement dated 4/4/03 of Shri G.K. Bhatnagar (Exhibit No.X), he had categorically admitted that goods were warehoused on the basis of photocopies of Shipping Bill and In-Bond B/E. This has not been disputed by the C.O. Even letters of RSIL for warehousing also indicated that only copies of documents were produced by RSIL and no effort was made by the Charged Officer to verify original documents from Jamnagar Port. The C.O. has further admitted that Inspector has allowed warehousing after signing on the Yellow B/E and no authority has been quoted that the C.O. is required to sign. In this regard, I find that as per Notification No. 1/82 Cus. Dt. Oct1982 the Superintendent/Appraiser has been specified as proper officer for the purpose of section 60 and section 68 of Customs Act, 1962 relating to In-Bonding and Ex-bonding. Thus Inspector is not the proper officer to allow In-Bonding and Ex-bonding and this is a major lapse. These were also not signed by the Assistant Commissioner for which a specific mention and space of signature is already there in Bill of Entry for warehousing and no other authority is required.
I have gone through the copies of following ex-bond Bills of Entries (Exhibit No.X)
1. B/E No. 1/03 dated 7/3/03
2. B/E No. 2/03 dated 11/3/03
3. B/E No. 3/03 dated 13/3/03
4. B/E No. 4/03 dated 13/3/03
5. B/E No. 5/03 dated 17/3/03 Of above ex-bond Bills of Entries, I note that the AC has signed on B/E No. 1/03 dated 7/3/03 but has failed to sign on remaining four B/Es. In his reply to Additional Commissioner (P&V) vide letter dated 12/8/03 at point 2(c), C.O has mentioned that one or two B/Es remained to be countersigned by him as they were withdrawn by CIU. This plea is not acceptable as in these four B/E, clearance was given by Inspector on 11/3/200, 13/3/2003, & 17/3/2003 where as the records were withdrawn by CIU much later on 24/3/2003. For B/E for Ex-bond clearance, the B/E has to be countersigned by Asstt./Deputy Commissioner in all cases where the value is more than Rs. 50,000/- but has not been done in the present case. Thus I find that C.O. has failed to sign/countersign the In-Bond B/E and Ex-Bond B/E and the same have been cleared on signatures of an Inspector who is not the proper officer. These facts have not been contested by the C.O and since this is the part of form/law itself, everyone is presumed to know that and no separate authority is required to be quoted in the chargesheet. Thus I find that Charged Officer is guilty of these charges.
As per my discussion above, I find that the Charged Officer is guilty of all the charges mentioned in Article 1 of Annexure I & II of the chargesheet. The C.O. has dishonestly accommodated the vested interest of M/s RSIL thereby endangering Govt. Revenue. He has, thus, failed to maintain absolute integrity, displayed lack of devotion to duty and depicted a conduct unbecoming of a Govt. servant and thereby, contravened the provisions of Rule 3(1), (i), (ii) and (iii) of Central Civil Services (Conduct) Rules, 1964.
Article-II I have gone through the records and the submissions of the Presenting Officer and Charged Officer. Regarding the charge that the CO had appointed Shri G.K. Bhatnagar, Inspector (Tech) and Shri Tejram Mourya, Sepoy of Divison Office to attend the work relating to Customs Bonded Warehouse instead of allowing the concerned Range Supdt. to do so, I note that normally it is the duty of the concerned Range staff to look after the work of Customs Bonded Warehouse. In fact, a public notice/circular is issued regarding jurisdiction of Range Offices which decides the Superintendent and Inspector in charge of the unit. This is normally issued by Commissioner and a Asstt Commissioner cannot assign work to some other officer without taking permission from Headquarters.
The other charge that the Charged Officer had directed Shri G.K. Bhatnagar not to route the files through the Supdt. (Tech) and the letters received from M/s RSIL were not entered in the Inward Register, the CO stated that he had assumed he work of Supdt. (Tech) himself. This plea of CO is not acceptable. In fact, at the time of granting licence (Exhibit No.VII) on 18/09/02, it was marked to Supdt., Range-V with a direction to ensure that the provisions of the Customs Act, Rules or orders are followed properly. This clearly indicates that Supdt., Range-V was supposed to look after the work of Customs Bonded Warehouse. However, later on, a system was developed whereby no Supdt. was involved in this work. In fact, the letter dated 14/02/03(Exhibit No.III), was marked to Supdt. (Tech), but never reached there. It was attended to directly by Shri G.K. Bhatnagar, Inspector. During the course of Hearing, the IO had asked the CO that despite having Range Supdt. and several Supdts. in the Division Office, why this work was not given to any Supdt. and was looked after by the Asstt. Commissioner himself directly, the CO could not give any reply. Thus, I feel that an arrangement was developed that Shri G.K. Bhatnagar, Inspector was given the work of the Customs Bonded Warehouse and no Supdt. was involved, so that no other officer could know that financial accommodation was being provided to the party concerned at the cost of Govt. revenue.
Regarding the charge that letters received from M/s RSIL were not entered in the Inward Register, the CO stated that one letter dated 20/02/03 was entered in the Inward Register. However, I note that the remaining letters were not entered, and also that letter dated 14/02/03 and 19/03/03 of Exhibit-III, and three letters of the party at Exhibit-VIII were not entered in the Inward Register. I also note that in reply to Question No.6 of Statement dated 2/04/03 (Exhibit No.X) Shri G.K. Bhatnagar, Inspector has stated that it was ordered by the Asstt. Commissioner that the work relating to Private Bonded Warehouse was to be performed under his direct supervision and no Suptdt. (Tech) was allotted such work. Thus, the said letter was disposed of by putting the file directly to the Asstt. Commissioner. In reply to Question No.7 and 8, Shri S.K. Bhatnagar stated that though the letter dated 14/02/03 was marked to Supdt.(Tech), the same was given to him and the Asstt. Commissioner desired to put up the said letter directly to him. In reply to Q.No. 12 as to why the said Shipping Bills said to have been received on 21/03/03 were not available in the Division files resumed by the Supdt. (CIU) on 24/03/03, Shri G.K. Bhatnagar replied that the said envelope containing the Shipping Bills was available with the Asstt. Commissioner and could not be placed on the file, as he was on tour.
Thus I find that:
(i) the Charged Officer was looking after the work of Customs Bonded Warehouse directly without involving any Supdt.,
(ii) the work was given to the Inspector and Sepoy of the Division office instead of the Range staff,
(iii) directed the Inspector not to route the files through the Supdt.(Tech),
(iv) the letters from M/s RSIL were being received personally by the CO and not entered in the Inward Register.
The above mentioned things were being done by the Charged Officer with the malafide intention that no other officer could know about the things going on with M/s RSIL and M/s DTPL, and that financial accommodation was being provided to the party concerned at the cost of Govt. revenue. Thus Shri Man Singh, AC craftily brought an arrangement into existence to facilitate improper financial accommodation to M/s RSIL and other concerned parties without possibility of exposure of such attempts to the detriment of the interests of the revenue. He has thus, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby, contravened the provision of Rule 3(1)(i), (ii), and (iii) of the CCS (Conduct) Rules, 1964. Thus, I find that all the chares in Article II stand proved.
Article -III I have gone through the charge and the submissions. Regarding the charge on recovery of Customs Duty payable on shortages found during rewarehousing, I find that it has not been disputed that the shortages were found during rewarehousing at Indore and Customs duty was payable on the shortages. The Charged Officer has stated that the custom duty was not chargeable at this end and was payable at Jamnagar. This plea is not acceptable and custom duty should be paid at the first instance as soon as the shortage is detected. The fact remains that the same company M/s RSIL is required to pay the duty and they paid it promptly when this was detected by Supdt. (CIU). Hence I hold the charge officer guilty of this charge.
Regarding the charge of interest on delayed clearance, I find that the goods were first warehoused in Jamnagar and then removed and rewarehoused at Indore warehouse. The C.O. has stated that the period of 30 days should be reckoned from the date of in-bonding at Mangalia warehouse and not from the date of initial in-bonding at Jamnagar warehouse. This interpretation of C.O is clearly wrong. As per section 61, any warehoused goods may be left in the warehouse in which they are deposited or in any warehouse to which they may be removed till the expiry of one year and interest is chargeable beyond period of 30 days. If this interpretation of C.O. were to be taken, an importer would keep the goods forever in a warehouse without payment of interest by moving them from one warehouse to another. Thus, the period of 30 days has to be reckoned from the date on which the imported goods were warehoused for the first time on entry into India. This is clear from a plain reading of the Custom Act. I also note that M/S RSIL had immediately paid the interest on delayed clearances without protest on being pointed out by Supdt (C.I.U.). Thus I hold the charged officer guilty of this charge.
I find the Charged Officer guilty of all the charges in Article III of Annexure I and II of the chargesheet. I find that the Charged Officer has by allowing clearances on the basis of improper Realease Advices, by not charging duty on the shortage and by not recovering interest on delayed clearances provided financial accommodation to the parties. Shri Man Singh, Assistant Commissioner, Group A has failed to maintain absolute integrity and devotion to duty, and acted in a manner unbecoming of a Government servant, and, thereby, contravened provisions of Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964.
4. The applicant made a representation against the aforesaid report. However, After taking into consideration the inquiry officers report as well as the representation of the applicant, the disciplinary authority, vide its order dated 16.08.2012 imposed upon him the punishment of reduction to next lower post in the scale of Rs.9300-34,800/- (Grade Pay of Rs.4800/-) till his retirement. The operative part of the said order reads as under:-
And whereas, the Commission have observed that the IO in his report has stated that the CO had admitted during the hearing on 22.3.2007 that there was a pipeline to another factory and it was not shown on the ground plan approved by him. The plea of CO that the line was made dead by removing a piece does not come to his rescue as it can be connected at any time and the line made operational. Further, the plea of the CO that the additional pipeline was not shown as it was laid on outer wall of the factory to M/s SIL is also not acceptable as the ground plan shows not only the factory of M/s Rsil but also the Railway siding, Pump house etc. Thus there was more than one pipeline and the CO gave a wrong verification report inspite of the condition of need of a single pipeline in the letter issued by his predecessor to rule out possibility of diversion of imported oil. The existence of another pipeline was suppressed by not bringing it on record.
And whereas, the Commission further observed that CO had issued space certificate dated 17.2.2003 for storage tank no. 96 to be 3500 M.T. The IO has stated that in the license for private customs Bonded warehouse No. 1/2002 dated 18.9.2002 M/s RSIL was directed to execute the Bond and BG on imported goods likely to be stored in the warehouse. Accordingly, M/s RSIL had given a bond for 1500 MT of the goods. Thus it is clear that as per the terms and conditions of the License, bond and BG, imported goods upto 1500 MT were allowed to be stored in the warehousing. Thus, it is established that oil in excess of 1500MT was stored which exceeded the quantity for which Bond/BG were furnished. Thus, this was in contravention of the terms and conditions of the License issued. It is also noted that the CO had accepted that goods in excess of 1500 MT were stored in the categorically admitted that goods were warehoused on the basis of photocopies of Shipping Bill and In-Bond B/E. This has not been disputed by the C.O. Even letters of RSIL for warehousing also indicate that only copies of documents were produced by RSIL and no effort was made by the CO to verify original documents from Jamnagar Port. Thus the article I of charge is proved.
And whereas, the Commission have also observed that the CO had posted Shri G. K. Bhatnagar, Inspector (tech.) and Shri Tejram Mourya, Sepoy both of Division Office on cost recovery basis to attend the work relating to warehousing of imported goods and clearance thereof in the private bonded warehousing, M/s RSIL instead of allowing the concerned Range staff to do so. The IO had further stated that the act of the CO was with the malafide intention so that no other officer could know about the things going on with M/s RSIL and M/s DTPL, and that financial accommodation was being provided to the party concerned at the cost of Govt. revenue. Thus, the CO craftily brought an arrangement into existence to facilitate improper financial accommodation to M/s RSIL and other concerned parties without possibility of exposure of such attempts to the detriment of the interests of the revenue. Records show that the CO had neither any directions nor any authority to carry out such postings. Therefore the Article of the Charge II is proved.
And whereas, the Commission have also noted that the IO in his report has stated that transfer agreement between M/s RSIL and M/s DTPL was dated 6.2.2003 while goods were warehoused for the first time at Jamnagar on 10.2.2003 by M/s RSIL. Subsequently, the goods were shifted under Transit Bond and shipping bill and there were again filed by M/s RSIL. The goods were rewarehoused at customs Private Bonded warehouse at Manglia, Indore by M/s RSIL. Its is not understandable that if the high sea had already taken place on 6.2.2003, then why these Bill of Entry for Warehousing at Jamnagar & Indore, Warehousing Bond, Shipping Bill and Transit Bond were not filed by M/s DTPL. This proves that actually no sale had taken place but goods were shown to have been sold on High Seas to save Custom duty of rs. 2.61 crore in cash which would have otherwise been payable by M/s RSIL. In fact when this was detected, M/s RSIL immediately went ahead and paid Rs. 2.61 crore in cash. This has also been done to evade Commercial Tax which would otherwise have become payable. The Commission observed that charges on Article III is proved on the basis of the documentary evidence.
And whereas, in the light of these observations and findings and after taking into account all other aspects relevant to the case, the Commission have observed that the ends of justice would be met in this case if the penalty of reduction to next lower post in the pay scale of Rs. 9300 34,800/- (Grade Pay of Rs. 4800/-) till his retirement is imposed on Shri Mansingh (the Co).
And whereas , the President has further considered the matter and taking into consideration all relevant factor and records, he has come to a conclusion that the charges are fully proved against the charged officer and proven charge involve a serious misdemeanor on the part of CO. he considers that advise of UPSC is fair and appropriate and may be accepted.
Now, therefore, the President hereby imposes a penalty of reduction to next lower post in the pay scale of Rs.9300 34800/- (Grade pay of Rs. 4800/-) till his retirement on Shri Mansingh (The CO).
5. The applicant has assailed the aforesaid charge memo dated 09.03.2005 containing the article of charges, inquiry officers report dated 01.04.2000 and disciplinary authoritys order dated 16.08.2012, in this OA. According to the applicant, the entire disciplinary proceedings got vitiated due to the fact that the inquiry officer failed to follow the provisions contained in Rule 14 of the of CCS(CCA) Rules, 1965. He has stated that the inquiry was held de horse the principles of natural justice and as a result he has suffered irreparable loss and injury. Even though there were as many as 14 documents in the list of documents based on which the charges were proposed to be sustained against him, there was not a single witness to prove them. The Inquiry Officer permitted the Presenting Officer to read the exhibits thereby depriving the applicant an opportunity to cross examine the witness through whom those documents should have been proved in the inquiry. On the other hand, the Presenting Officer was allowed to cross examine the applicant without affording him an opportunity to rebut the prosecution case. Thereafter, the Inquiry Officer in a perverse manner held that the charges have been proved. He has also stated that from the very beginning, the Inquiry Officer was unduly favouring the prosecution side and he was biased against him. The said conduct of the Inquiry Officer was evident from the proceedings itself. He has, therefore, submitted that this is a case of malice in law and disciplinary proceedings have been thrown to wind and a procedure unheard of has been adopted which violates the cardinal principle of fair and just hearing. The Inquiry Officer at the preliminary stage of hearing itself asked the applicant to produce his list of witnesses along with the issues on which they want to make their deposition. Further, according to the applicant, even the listed documents were given to him only at the preliminary stage of hearing and not before. As a result, he was unable to make any proper submissions on those documents. The applicant had also submitted a list of documents which were required by him for the effective defence of his case but the Inquiry Officer rejected most of them on the flimsy reason that he failed to specify the points on which the said documents would help him to clarify the position. Some other documents were rejected on the ground that they were fictitious. Yet another set of documents were rejected on the ground that they were not required. The inquiry officer has also rejected his request to allow one of the defence witness mentioned by him in his letter dated 24.11.2006. Further, despite his repeated requests to ask the Presenting Officer to present his side of the case and close evidence of the prosecution the Inquiry Officer did not consider them. He has also submitted that the Inquiry Officer refused to follow the procedure mentioned under sub-rule (16) and (17) of Rule 14 of the CCS (CCA) Rules, 1965, which are as under:-
(16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
6. The applicant has also submitted that the entire proceedings held against him were against the principles of natural justice. He has specifically stated that as against the settled principle of law as laid down in Article 20(3) of the Constitution of India, that no person shall be forced to depose against himself in a proceeding where he himself is charged without addressing any evidence against him. The Inquiry Officer and Presenting Officer repeatedly cross examined him and elicited answers which were convenient to their purpose.
7. Learned counsel for the applicant has also relied upon the judgment of the High Court of Delhi in Bidyug Chakraborty vs. Delhi University 2009(6) AD (Delhi) 1. The relevant part of the said order reads as under:-
6. Rule 14 of CCS/CCA rules prescribes the procedure for imposing major penalty and to the extent it is relevant, the rule reads as under:
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
(16) when the case for Disciplinary Authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded, and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross - examination, re-examination and examination by the Inquiring Authority according to the provisions applicable to the witnesses for the Disciplinary Authority.
(18) The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
xxx xxx xxx xxx
14. As noted earlier, no opportunity was given to the petitioner for verbal cross examination of the complainant. A perusal of the inquiry report shows that the committee informed the petitioner that he could cross examine the complainant by giving written questions to the committee. In our opinion, mere permission to give written questions to the committee for cross examination of the complainant does not fulfil the legal requirement on the part of the Inquiring Authority, to give opportunity to the delinquent to cross examine her. Cross examination by giving written questions to the inquiring authority can never be as effective as verbal cross examination and cannot be its proper substitute. While putting questions to a witness the examiner does not know what answer the witness would give to the questions put to him/her. It is, therefore, not possible for him to formulate the next question without taking into consideration the answer given by the witness. The answer given by the witness to one question may lead to further questions from the examiner on the same line, in order to elicit truth from the witness and to impeach his/her trustworthiness. Moreover, asking the petitioner to give written questions for cross examination was confined in respect of the complainant alone. No opportunity was given to the petitioner even to give written questions for cross examination of other witnesses examined by the committee. It was imperative on the part of the Inquiring Authority to give opportunity to the petitioner for her cross examination not only of the complainant but also of the other witnesses examined by it. Denial of opportunity to cross examine the complainant and other witnesses examined by the committee constitutes gross violation of principles of natural justice.
15. Rule 14(16) of CCS/ CCA rules mandates the Disciplinary Authority to ask the delinquent to state his defence which is to be recorded unless it is a written statement. Clause 17 of this rule requires the Inquiring Authority to then call upon the delinquent to produce his evidence. He may, if he chooses so, examine himself in his defence. In the present case, though at the time of serving charge sheet upon the petitioner, the committee asked him to give list of witnesses whom he wanted to be examined by the committee, no such opportunity was given to him after the committee had examined the complainant and other witnesses in support of the complaint. The committee was required not only to give an opportunity to the petitioner to produce his witnesses but those witnesses were to be cross examined by the petitioner and not by the committee, though, it would have been open to the committee to examine them after they had been examined by the petitioner and had also been subjected to cross examination.
8. The respondents have filed their reply stating that no cause of action has been accrued to the applicant to file the OA under reply inasmuch as no statutory rule or binding instruction of the Government has been violated. They have also stated that the competent authority has passed the orders in accordance with the relevant rules and instructions on the subject and the same do not suffer from any infirmity and/or illegality. They have further stated that this Tribunal may not like to exercise its extra-ordinary power of judicial review in the decision/orders of the competent disciplinary authority and appellate authority against the applicant herein. They have further submitted that the applicant has not been able to show any violation of any principle of law or binding instructions which has caused any prejudice to him. In this regard, they placed reliance on the law laid down by the Apex Court in the case of B.C. Chaturvedi vs. UOI AIR 1996 SC 484 and in the case of State Bank of Patiala vs. S.K. Sharma, 1996 AIR (SC) 1669.
9. We have heard the learned counsel for the applicant Shri Pramod Gupta and learned counsel for the respondents Shri R.N. Singh. We have also perused the entire documents available on record. In our considered view, the report of the inquiry officer is absolutely perverse as there was no evidence against the applicant. The inquiry officer has acted in total violation of the provisions contained in Sub-Rules (3), (14), (16) and (17) of Rule 14 of the CCS (CCA) Rules, 1965, which are as under:-
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
xxxx xxxx xxxx (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
xxxx xxxx xxxx (16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
10. It is seen that there were 14 listed documents by which the Article of charges were proposed to be proved against the applicant but there was not a single prosecution witness to prove them. As held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570, mere production of documents is not enough but their contents have to be proved by examining the concerned witnesses. The relevant part of the said judgment is reproduced as under:-
14.The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof
11. The Apex Court in its judgment in the case of State of U.P. & Ors. v Saroj Kumar Sinha, 2010 (2) SLJ 59 reiterated the aforesaid position and held that the function of the Inquiry Officer is to examine the evidence produced to him by the department. It was also held that since no oral evidence has been examined, the documents could not have been held proved. Further, it was held in the said judgment that the departmental enquiry cannot be treated as a casual exercise. The relevant part of the said judgment is as under:-
26Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
27. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said procedural fairness and regularity are of the 20 indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
12. We, in the above facts and circumstances, allow the OA. Consequently, we quash and set aside the disciplinary proceedings as well as the order of the Disciplinary Authority dated 16.08.2012 with all consequential benefits. The Respondents shall pass appropriate orders complying with the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( P.K. Basu ) ( G. George Paracken ) Member(A) Member (J) /vb/