Central Administrative Tribunal - Delhi
Shri Shakti Singh vs Union Of India on 28 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 1014/2013
MA 786/2014
With
OA 1002/2013
MA 781/2013
OA 1012/2013
New Delhi this the 28th day of February, 2014
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K.Bhardwaj, Member (J)
OA 1014/2013
Shri Shakti Singh,
Superintendent,
S/o Shri Jitender Singh,
R/o D-502, I.P.Regency,
Moti Lal Nagar-1,
Goregaon West, Mumbai,
Maharashtra. Applicant
(By Advocate Shri Sachin Chauhan )
VERSUS
1. Union of India,
Through the Secretary (Revenue),
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Commissioner,
Department of Central Excise,
Delhi-1, C.R.Building,
I.P. Estate, New Delhi
3. The Deputy Commissioner,
Inquiry Officer, Central Excise Div-1,
Delhi, Deepshikha Building, Rajendra Place,
New Delhi. Respondents
(By Advocate Shri R.N.Singh )
OA No. 1002/2013
Joseph Kouk,
Superintendent of Customs,
Presently Posted at:
Large Taxpayers Unit
NBCC Plaza Pushp Vihar,
Saket, New Delhi. Applicant
(By Advocate Ms. Shikha Sapra)
1. Union of India,
Through Secretary (Revenue),
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Commissioner,
Department of Central Excise,
Delhi-1, C.R.Building,
I.P. Estate, New Delhi. Respondents
(By Advocate Shri R.N.Singh )
OA 1012/2013
Smt. Achla Khera
Superintendent,
W/o Shri Prem Khera,
R/o 10/153, Lodhi Colony,
New Delhi-3. Applicant
(By Advocate Shri Sachin Chauhan)
VERSUS
1. Union of India,
Through the Secretary (Revenue),
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Commissioner,
Office of Commissioner of Central Excise,
Delhi-III, Udyog Minar,
Vanijay Nikunj, Udyog Vihar,
Phase-V, Gurgaon.
3. The Commissioner,
Customs,
Import & General, New Customs House,
New Delhi. Respondents
(By Advocate Shri R.N. Singh )
O R D E R
Honble Mr. A.K.Bhardwaj, Member (J):
Three Original Applications raise common legal and factual controversy, thus are taken up for disposal together in terms of the present order. The Directorate of Revenue Intelligence, Delhi Zonal Unit investigated a case of fraudulent availment of drawback on export of cheap quality junk UPVC pipes by M/s Aravali (India) Ltd. The company had its own manufacturing unit at Hissar and the goods were exported to Dubai (UAE). The investigation revealed that the company had exported 244 containers during July 1998 to January, 1999. Declaring the description weight and value of the export goods, the company had already availed duty drawback to the tune of Rs.5.20 crores and further claim of drawback of about Rs.1.72 crores was denied consequent to the investigations by DRI. Investigations conducted by DRI revealed that the company had presented 265 shipping bills out of which 244 stuffed containers had been processed for export. The remaining 21 shipping bills were found withdrawn by the party from the customs. Out of the processed 244 shipping bills, goods covered by 230 shipping bills had already been physically exported out of India. But the goods covered by the remaining 14 shipping bills contained in 14 containers had not been physically dispatched and were lying at Mumbai Port due to some dispute between the shipping line and the exporter. These 14 containers were detained and examined by the DRI Officers in the presence of the representatives of the exporter, shipping line and two independent witnesses. The examination, inter alia, revealed that the goods contained in the containers were junk PVC pipes of a length shorter than declared and brittle in nature. The actual weight was also found only one third of the weight declared in the shipping bills. The duty drawback on rigid UPVC pipes was claimed on weight basis. The goods contained in 14 containers were seized under the Customs Act, 1962. Overseas enquiries conducted in the matter could reveal that out of 230 containers already exported, goods contained in 66 containers had been auctioned at Dubai Port for a meager amount of Dhs. 16,000.00 i.e. Rs.1.60 lakhs only. The DRI sought copies of shipping bills from the office of the Commissioner of Customs, ICD, Tughlakabad, New Delhi during the course of investigation. The scrutiny of copies of 219 bills made available by the Customs Authorities revealed that 23 officers of the Customs, including the applicant, herein, had examined the consignments covered by the said 219 shipping bills. The Additional Director General, DRI sent a letter to Chief Commissioner of Central Excise (Delhi Zone) recommending departmental action for dereliction of duties against the 23 officers mentioned in the letter. The names of said officers are:-
ShriKapoora Ram, Supdt
ShriMadan Lal, Supdt.
Shri N.S. Bhola, Inspector
Shri Mahesh Kumar, Superintendent
ShriTandon -do-
ShriS.S.Rathee -do-
Shri Vijay -do-
Shri Rakesh -do-
Shri P.P.Singh -do-
ShriV.S.Rathee -do-
Shri Shakti Singh -do-
Shri Hari Singh -do-
Shri Jarnail Singh -do-
Shri Lovkesh Kumar Inspector
Shri Ajay Sardana -do-
Shri Shiv Kumar Supdt.
Shri Dharam Singh -do-
Shri Joseph Kauk -do-
19. Shri M.S.Bhatia -do-
20. Shri Satya Kukreja Inspector
21. Shri Nawal Singh -do-
22. Ms. Achla Khera -do-
23. Shri Zaki Anwar -do-
Thus, the applicants were charged with misconduct of failure to maintain absolute integrity in as much as they examined and cleared the export consignment of M/s Aravali (India) Ltd. Hissar (Haryana) against the shipping bills vide which the offending goods were exported without raising objection and failing to conduct de-stuffing of the consignment meant for export from the container properly. Besides the aforesaid allegations, there are certain other allegations made against the applicant contained in the article of charges framed against them. For easy reference article of charges are extracted hereinbelow:-
OA 1014/2014- Statement of Articles of charge framed against Shri Shakti Singh, Superintendent (then Inspector) That the said Shri Shakti Singh, Superintending ( then Inspector) while functioning as Inspector, Export Shed, ICD, TKD, New Delhi during the period September, 1998 to January, 1999.
ARTICLE-1 Failed to maintain absolute integrity in as much as he examined and cleared the export consignment of M/s Aravali (India) Ltd., Hissar (Haryana) against the Shipping Bulls ( as per Annexure-III) vide which the offending goods were exported, without raising any objection. The goods were misdeclared and over valued for the purpose of fraudulent availment of drawback. The gods which were exported were junk material and not rigid UPVC as mentioned in the said Shipping Bills.
ARTICLE-II Failed to maintain devotion to duty and acted in a manner unbecoming of a Government Servant in as much as he did not property conduct the de-stuffing of the consignment meant for export from the containers. He also failed to properly conduct the examination, stuffing of the consignment meant for export in the containers and the sealing of the same. He allowed the export of junk materials which were misdeclared and overvalued. He, thus, failed to perform his duty as an examination officer.
ARTICLE-III Failed to maintain devotion of duty and acted in a manner unbecoming of a Govt. servant in as much as he failed to properly examine the export of the impugned goods as an examination officer which led to loss of huge Govt. revenue.
ARTICLE-IV Failed to enforce the requirements of CBEC Circular No.34/95 dated 06.04.95 issued under F.No.609/34/95-DBK in as much as he did not draw the representative samples from the exported consignments and send the same for chemical analysis to CRCL, though huge amount of Government Revenue was involved. Had he taken due care, the admissibility of drawback could have been decided judiciously and cases of fraudulent exports could have been detected.
By the aforesaid acts of commissions and omissions contained in Article-1 to Article-IV above, it is, therefore, imputed that Shri Shakti Singh, Superintendent (then Inspector), failed to maintain devotion to duty, absolute integrity and without properly exercising best of his judgments, acted in a manner unbecoming of a Government servant and they contravened the provisions of Rule 3 (1)(i)(ii)(iii) and 3 (2) (i)(ii) of CCS Conduct Rules, 1964. OA 1002/2013 Statement of Articles of charge framed against Shri Joseph Kouk, Superintendent ( then Superintendent).
That the said Shri Joseph Kouk, Superintendnet ( then Superintendent), while functioning as Superintendent, Export Shed, ICD, TKD, New Delhi during the period November, 1998 to January, 1999.
ARTICLE-1 Failed to maintain absolute integrity in as much as he examined and cleared the export consignment of M/s Aravali (India) Ltd., Hissar (Haryana) against the Shipping Bills ( as per Annexure-III) vide which the offending goods were exported, without raising any objection. The goods were misdeclared and over valued for the purpose of fraudulent availment of drawback. The goods which were exported were junk material and not rigid UPVC as mentioned in the said Shipping Bills.
ARTICLE-II Failed to maintain devotion to duty and acted in a manner unbecoming of a Government Servant in as much as he did not properly supervise the de-stuffing of the consignment meant for export from the containers. He also failed to supervise the examination, stuffing of the consignment meant for export in the containers and the sealing of the same by his subordinates. He allowed the export of junk materials which were misdeclared and overvalued. He thus, failed to perform his duty as a supervisory officer as he has not pointed out/noticed misconduct committed by his subordinate.
ARTICLE-III Failed to maintain devotion of duty and acted in a manner unbecoming of a Govt. servant in as much as he failed to examine and supervise the export of the impugned goods as a supervisory officer which led to loss of huge Govt. revenue.
ARTICLE-IV Failed to enforce the requirements of CBEC Circular No. 34/95 dated 06.04.95 issued under F.No.609/34/95-DBK; as he neither ordered nor ensured the drawl of samples from the exported consignments and sent the same for chemical analysis to CRCL, though huge amount of Government Revenue was involved. Had he taken due care & caution by giving the directions to his subordinate officers to draw samples in such cases of export of goods, the admissibility of drawback could have been decided judiciously and cases of fraudulent exports could have been detected.
By the aforesaid acts of commissions and omissions contained in Article-1 to Article-IV above, it is, therefore, imputed that Shri Joseph Kouk, Superintendent ( then Superintendent), failed to maintain devotion to duty, absolute integrity and without properly exercising best of his judgments, acted in a manner unbecoming of a Government servant and thereby contravened the provisions of Rule 3 (1) (i)(ii)(iii) and 3 (2) (i)(ii) of CCS Conduct Rules, 1964.OA 1012/2013
Statement of Articles of charges framed against Ms. Achla Khera, Superintendent ( then Inspector) That the said Ms. Achla Khera, Superintendent ( then Inspector) while functioning as Inspector, Export Shed, ICD, TKD, N. Delhi during the period September, 1998 to December, 1998.
ARTICLE-1 Failed to maintain absolute integrity in as much as she examined and cleared the export consignment of M/s Aravali (India) Ltd., Hissar (Haryana) against the Shipping Bills ( as per annexure-III) vide which the offending goods were exported, without raising any objection. The goods were misdeclared and over valued for the purpose of fraudulent availment of drawback. The goods which were exported were junk material and not rigid UPVC as mentioned in the said Shipping Bills.
ARTICLE-II Failed to maintain devotion to duty and acted in a manner unbecoming of a Government in as much as she did not properly conduct the de-stuffing of the consignment meant for export from the containers. She also failed to properly conduct the examination, stuffing of the consignment meant for export in the containers and the sealing of the same. She allowed the export of junk materials which were disdeclared and overvalued. She, thus, failed to perform her duty as an examination officer.
ARTICLE-III Failed to maintain devotion of duty and acted in a manner unbecoming of a Govt. servant as much as her failure to properly examine the export of the impugned goods as an examination officer led to loss of huge Govt. revenue.
ARTICLE-IV Failed to enforce the requirements of CBEC Circular No. 34/95 dated 06.04.95 issued under F.No. 609/34/95-DBK in as much as she did not draw the representative samples from the exported consignments and send the same for chemical analysis to CRCL, though huge amount of Government Revenue was involved. Had she taken due care, the admissibility of drawback could have been decided judiciously and cases of fraudulent exports could have been detected.
By the aforesaid acts of commissions and omissions contained in Article-1 to Article-IV above, it is, therefore, imputed that Ms. Achla Khera, Superintendent (then Inspector), failed to maintain devotion to duty, absolute integrity and without properly exercising best of her judgments, acted in a manner unbecoming of a Government servant and thereby contravened the provisions of Rule 3 (1) (i)(ii)(iii) and 3 (2)(i)(ii) of CCS Conduct Rules, 1964. The applicants have filed the present OA, assailing the aforementioned charge sheet, inter alia, on the ground of delay. During the course of hearing, counsel for applicants constantly confined their submissions to delay in initiation of the disciplinary proceedings and submitted that in view of judgment of Honble Delhi High Court dated 23.09.2013 in the case of Union of India and Anr Vs. Hari Singh (WP (C) No. 4245/2013), the charge sheet are liable to be quashed. To substantiate their plea that the charges against the applicants are in verbatim same as were against Shri Hari Singh, they produced the statement of article of charges against Shri Hari Singh, Superintendent (then Inspector), which reads as under:-
Statement of articles of charges framed against Shri Hari Singh, Superintendent (then Inspector).
That the said Shri Hari Singh, Superintendent ( then Inspector) while functioning as Inspector, Export Shed, ICD, TKD. N. Delhi during the period November, 1998 to December, 1998.
ARTICLE-1 Failed to maintain absolute integrity in as much as he examined and cleared the export consignment of M/s Aravali (India) Ltd., Hissar (Haryana) against the Shipping Bills (as per Annexure-III) vide which the offending goods were exported, without raising any objection. The goods were misdeclared and over valued for the purpose of fraudulent availment of drawback. The goods which were exported were junk material and not rigid UPVC as mentioned in the said Shipping Bills.
ARTICLE-II Failed to maintain devotion to duty and acted in a manner unbecoming of a Government Servant in as much as he did not properly conduct the de-stuffing of the consignment meant for export from the containers. He also failed to properly conduct the examination, stuffing of the consignment meant for export in the containers and the sealing of the same. He allowed the export of junk materials which were misdeclared and overvalued. He, thus, failed to perform his duty as an examination officer.
ARTICLE-III Failed to maintain devotion of duty and acted in a manner unbecoming of a Govt. servant as much as his failure to properly examine the export of the impugned goods as an examination officer led to loss of huge of Govt. revenue.
ARTICLE-IV Failed to enforce the requirements of CBEC Circular No. 34/95 dated 06.04.95 issued under F.No. 609/34/95-DBK in as much as he did not draw the representative samples from the exported consignment and send the same for chemical analysis to CRCL, though huge amount of Government Revenue was involved. Had he taken due care, the admissibility of drawback could have been decided judiciously and cases of fraudulent exports could have been detected.
By the aforesaid acts of commissions and omissions contained in Article-1 to Article-IV above, it is, therefore, imputed that Shri Hari Singh, Superintending (then Inspector), failed to maintain devotion to duty, absolute integrity and without properly exercising best of his judgments, acted in a manner unbecoming of a Government servant and thereby contravened the provisions of Rule 3 (1) (i)(ii) (iii) and 3 (2)(i)(ii) of CCS Conduct Rules, 1964. Learned counsel for the applicant read out the judgment of Honble Delhi High Court in UOI & Anr. Vs. Hari Singh (ibid) and submitted that the controversy involved in present OAs is on all fours of the said judgment. He also placed reliance on the judgment in Union of India and Anr. Vs.Madan Lal delivered by Honble High Court, following the view taken in UOI & Anr Vs. Hari Singh (supra). Para 19 to 24 of the judgment in UOI & Anr Vs. Madan Lal (W P (C) 3944/2012) dated 1.10.2013 read as under:-
19. These very grounds and circumstances except the facts relating to the superannuation of the petitioner have been considered in great detail in the case of UOI V. Hari Singh (supra). No circumstances, reasons or grounds had been pointed out to us by learned counsel for the petitioner which would enable us to take a different view in the instant petition.
20. In the judgment dated 23th Septemebr, 2013, we have also noted the office Memo dated 23rd May, 2000 issued by Centrl Vigilance Commission Schedule of Time limits in conducting investigation as well as departmental enquiry, CVC had observed that delay in disposal of the disciplinary proceedings was a matter of a serious concern to the Commission and such delay also affects the morale of the suspected charge employees and others in the organization.
21. We have noted in UOI v. Hari Singh (supra) that disciplinary proceedings should be condoned, soon after the alleged mis-conduct or negligence on the part of the employee, is discovered. Issuance of charge sheet after inordinate delay cannot be said to be fair to the Delinquent Officer. Since it would also make the task of proving the charges difficult, it would also not be in the interest of administration. If the delay is too long and remains unexplained, the court may interfere and quash the charges. The position in this present is no different.
22. Learned counsel for respondent submits that despite the petitioner having succeeded before the Central Administrative Tribunal as back as on 8th November, 2011 and that there being no stay in the present case, the respondent have till date not even computed the payments to be made to the petitioner regarding retirement benefits. To say the least, this is most unfortunate and despite the settled position in law.
23. As noted by us in UOI v. Hari Singh (supra) this petition is completely mis-conceived.
24. In view of the above, we direct as follow:-
(i) The writ petition is dismissed as devoid of legal merits.
(ii) The petitioners shall ensure that the terminal benefits due to the respondent are computed within a period of dour weeks from today and communicated to the respondents forthwith.
(iii) The petitioner shall ensure that the payment of arrears of the pension is effected to the respondents within a period of four weeks thereafter.
(iv) The respondents shall be entitled to costs which are assessed as Rs.25,000/- each before the 7th day of next calendar year. On the other hand, Shri R.N.Singh, learned counsel for respondents submitted that the ratio deci dendi of the judgment of Honble High Court is that after long delay, the human memory can get blurred and the delinquent cannot be expected to defend himself in the disciplinary proceedings properly, thus there is inevitable prejudice to his defence and in the circumstances charge sheet is liable to be quashed on the ground of delay. He tried to distinguish the judgment, taking the plea, that in OA No. 1014/2013 (Shakti Singh Vs. UOI &Ors), the applicant could submit his reply to charge sheet giving all possible defence, thus it cannot be said that on account of delay, his memory is blurred and he is unable to defend himself. He submitted that since said aspects could not be considered by Honble High Court, the judgment needs to be ignored as sub-silentio. Making a reference to the judgment of Honble Supreme Court in the Government of Andhra Pradesh and Ors Vs. Appala Swamy (2007) 3 Scale 1), he submitted that a case of prejudice needs to be made out by the concerned employees before the enquiry officer.
4. In rejoinder, leaned counsel for applicant relied upon the orders of this Tribunal in Pradeep Sharma Vs. UOI and Ors, Rakesh Chander Vs. UOI & Ors and N.S. Bhola Vs. UOI & Ors and submitted that in view of the law declared by Honble Supreme Court in SI Roop Lal and Ors Vs. Lt. Governor through Chief Secretary and Ors decided on 14.10.1999 (JT 1999 (9) SC 597), it is not open to this Bench to disregard the order of the Co-ordinate Bench. Having referred to the order dated 4.02.2009 in OA 911/2008, learned counsel specifically submitted that it would be appropriate for the Tribunal, in the interest of justice and fair play, to follow the judgment of co-ordinate Benches. Para-9 of the order read out by the learned counsel is extracted hereinbelow:-
9. The leaned counsel for the respondents has sent photostat copies of a bunch of decisions (irregularly arranged) on the question of delay. We need refer to only two of them they having been rendered by the Apex Court and the rest by State High Courts:-
The first one is the decision rendered in Secretary to Government, Prohibition & Excise Department Vs. L.Srinivasan ( 1998) 3 SCC 157). It is a case relating to embezzlement and fabrication of records. Criminal trial on those charges was also pending. It was held that quashing of suspension and charges on the ground of delay in initiation of disciplinary proceedings is a grossest error. It was further held that in the nature of the charges, it would take a longtime to detect embezzlement and fabrication of false records, which should be done in secrecy. In the case before us, no criminal proceedings are pending and the competent authority in the proceedings initiated under Sections 112 and 114A of the Customs Act, 1962 in respect of the same transaction dropped the proceedings.
The second one was rendered in The Government of Andhra Pradesh and Ors Vs. Appala Swamy (2007) (3) SCALE 1, the Apex Court held as under:
12. So far as the question of delay in concluding the departmental proceeding as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down, therefore. Each case must be determined on the own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:-
(i) Where by reason of the delay, the employer condoned the lapses on the part of the employee;
(2) Where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer.
(Emphasis supplied) Though it is held that a case of prejudice is to be made by the employee before the Inquiry Officer, the facts of the present case differ in that the proceedings under Section 112 and 114A of the Customs Act were dropped after inquiry and the disciplinary proceedings against another Appraiser and an Assistant Commissioner had already been set aside by the Principal Bench and the Bombay Bench respectfully, as stated supra. Each case must be determined on its own facts. Unless any material is placed by the respondents that would compel us to come to a contrary opinioned it would be more appropriate for us in the interests of justice and fair play to follow the decision of the two co-ordinate benches of this Tribunal as the facts in all the three cases are similar.
5. We have heard counsel for parties and perused the record. There is no doubt that the charges against the applicant herein and the petitioner in WP (C) 4245/2003 ( UOI & Anr. Vs. Hari Singh) are pari meteria. Once exactly identical charges are quashed by Honble High Court on the ground of delay, it would not be open to this Tribunal to take different view in the matter. For easy reference, the view taken by Ladyships of Honble High Court is extracted hereinbelow:-
20. The question which arises for consideration in the present matter is whether the delay in issuance of the charge sheet stands adequately explained and what is the impact of the delay so far as the rights of the respondent are concerned.
xxx xxx
51. So far as the delay which the petitioner had to explain in issuance of charge memo dated 25th February, 2011 is concerned, this memo was thus initiated more than thirteen years after the transaction in question; more than eleven years after completion of the custom investigation and after completion of the adjudication by the Commissioner Custom on 2nd November, 2001; more than 8 years after the 6th August, 2003 when the DRI informed the petitioner about the recommendations for departmental action against 23 officials and 7 years after the petitioner had been called WP(C) No.4245/2013 page 31 of 43 for and interrogated on the 27th of October, 2004.
52. In the impugned judgment dated 19th December, 2011, the Central Administrative Tribunal has held that inordinate and unexplained delay in issuance of the chargesheet is violative of the principles of natural justice.
53. The available record was considered sufficient by the Commissioner Custom to pass a final adjucation order dated 2nd November, 2001. This order makes a detailed reference to the shipping bills and other documents. However, when it comes to initiation of disciplinary proceedings against the respondent, the petitioners want this court to accept that the available record was insufficient.
54. On the question as to the manner in which disciplinary proceedings are required to be processed, learned counsel for the respondent has drawn our attention to the Office Memorandum No.000/VGL/18 dated 23rd May, 2000 issued by the Central Vigilance Commission, Government of India. By this memorandum, the Vigilance Commissioner had recommended a schedule of time limits in conducting investigation and WP(C) No.4245/2013 page 32 of 43 departmental inquiries. It is observed that delay in disposal of disciplinary cases are a matter of serious concern to the commission and that such delay also effect the morale of the suspected charged employees and others in the organization.
55. The commission reiterated its prior instructions dated 3rd March, 1999 which prescribed the following time limits to be adhered by the Ministry/Departments of Government of India, autonomous organizations and other Cooperative Societies, in respect of their employees for expeditious disposal of the cases :-
S.No. State of Investigation or Inquiry Time Limit
Decision as to whether the complaint One month from
a vigilance angle. Receipt of the
complaint.
Decision on complaint, whether to be -do- filed or to be entrusted to CBI or to be
taken up for investigation by departmental
agency or to be sent to the concerned
administrative authority for necessary
action.
3. Conducting investigation and submission Three months
of report.
4. Departments comments on the CBI reports One month from
in cases requiring Commissions advice the date of
Receipt of CBIs
report by the CVO/DisciplinaryAuthority.
Referring department investigation reports One month from
to the Commission for advice. the date of
receipt of investi-
gation report.
Reconsideration of the Commissions One month from
advice, if required. the date of
receipt of
Commissions
advice.
Issue of charge-sheet, if required. (i) One month
from the date of
receipt of
Commissioners
advice.
(ii) Two months
from the date of
receipt of investi-
gation report.
Time for submission of defence statement Ordinarily ten
days or as
specified in CDA
rules.
Consideration of defence statement 15 (Fifteen) days
10. Issue of final orders in minor penalty Two months from
cases. the receipt of
defence statement.
11. Appointment of IO/PO in major penalty Immediately
cases. after receipt and
consideration of
defence statement
12. Conducting departmental inquiry and Six months from
submission of report the date of
appointment of IO/PO.
13. Sending a copy of the IOs report to the i) Within 15 days
Charged Officer for his representation. of receipt of IOs
report if any of the Articles of charge has been held as proved.
ii) 15 days if all
charges held as not proved.
Reasons for dis-
Agreement with
IOs findings to be
communicated.
14. Consideration of COs representation and One month from
forwarding IOs report to the Commission the date of
for second stage advice. receipt of
representation.
15. Issuance of orders on the Inquiry report i) One month
from the date of
Commission
advice.
ii) Two months
from the date of
receipt of IOs report if Commissions advice was not required.
The above time line has been hopelessly breached by the
petitioners.
56. In the instant case, information with regard to adjudication was received vide the order dated 21st August, 1999 while the WP(C) No.4245/2013 page 35 of 43 charge memorandum has been issued on 25th February, 2011. The charge memo was thirteen years after the transaction; eleven years after completion of the adjudication by the customs; 8 years after the DRI recommended the Departmental action against 23 officials and seven years after the petitioner was interdicted as on 27 th of October, 2011 by the Vigilance Section of the petitioner. The petitioner has been given promotion in the meantime. Eight officers out of 23 named in the report dated 6th August, 2003 have retired. Certainly we have noted above the observations of the authority who had passed the order. The DRI in its
communication dated 6th August, 2003 has taken a view that it was a little far fetched to infer that each of the officers had colluded and/or connived with the exporter in the latters fraudulent activities. The DRI has stated that a charge of gross negligence or dereliction of duty against the concerned officials would appear to be more appropriate and sustainable as well. Thus, no dishonesty was imputed to the respondent or any of the other persons named even by the DRI.
57. In the instant case, so far as delay is concerned, the petitioners do not remotely suggest that the respondent attributed to any delay. It is a hard fact that there is delay which is abnormal and extraordinary. The explanation of the petitioners is completely unacceptable for the reason that it is an after thought. In fact the petitioners had available with them the entire record which they claimed to have acquired belatedly.
58. It would be most inappropriate to accept the only justification tendered by the respondents of merely having written a few communications to the DRI for the documents. In any case, if the petitioner was serious about initiating disciplinary action in the above noted circumstances, it could have done so. We have noted above that the petitioner had available with them the necessary record and there was really no reason or occasion for delaying the proceedings for want of original documents. The final adjudication order as well as all inquiry reports was based on the records of the petitioners. Even after obtaining the inquiry report, the respondents delayed the matter not by one or two years but by several years as set out above.
59. We find that the courts have even held that delay in initiating disciplinary proceedings could tantamount to denial of a reasonable opportunity to the charged official to defend himself and therefore be violative of the principles of natural justice. In this regard, reference may usefully be made to the pronouncement of the Kerala High Court reported at 2001 (1) SLR 518 Meera Rawther Vs. State of Kerala wherein it has been held as follows:-
"3. 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."
60. So far as the prejudice is concerned, the long period which has lapsed between the alleged transaction and issuance of charge sheet would by itself have caused memory to have blurred and records to have been lost by the delinquent. Therefore, the respondent would be hard put to trace out his defence. The prejudice to the respondent is writ large on the face of the record. The principles laid down by the Supreme Court as well as by this court in the judgments cited by the respondent and noted above squarely apply to the instant case.
61. Certain intervening circumstances which are relevant and material for the purpose of the present consideration, deserve to be considered. We note such circumstances hereafter.
62. On the 23rd of September, 2012 the petitioner was promoted to the post of Superintendent, after evaluation in selection by the Departmental Promotion Committee and due vigilance clearance.
63. Learned counsel for the petitioner has also drawn our attention to the pronouncement of the Tribunal in O.A.No.2727/2010 titled Joseph Kouk v. Union of India & Another. It is important to note that Joseph Kuok was implicated in the same incident as the present respondent. He also assailed the disciplinary proceedings similarly commenced against him by way of O.A.No.2777/2010. The Central Administrative Tribunal allowed Joseph Kouk's petition on the ground of inordinate and unexplained delay on the part of the respondent in issuing the charge memo. In the impugned order, the Central Administrative Tribunal has relied upon its adjudication in the Joseph Kouk matter.
64. We have been informed that eight officers out of the twenty three who were named in the report dated 6th August, 2003 have been permitted to retire. The petitioners permitted these eight officers to retire voluntarily from service. No disciplinary proceedings were initiated against them before they retired. It is trite that an employee against whom disciplinary proceedings were being contemplated would not be permitted to leave the organization or to voluntarily retire from service. It is apparent therefore, that the respondents themselves did not consider the WP(C) No.4245/2013 page 40 of 43 matter as of any serious import affecting the discipline of the department.
65. In view of the above narration of facts, the delay in initiation of the proceedings certainly has lent room for allegations of bias, mala fide and misuse of powers against the respondent by the petitioners. In the judgment reported at 1995 (1) ILJ 679 (SC) State of Punjab v. Chaman Lal Goyalit has also been observed that when a plea of unexplained delay in initiation of disciplinary proceedings as well as prejudice to the delinquent officer is raised, the court has to weigh the facts appearing for and against the petitioners pleas and take a decision on the totality of circumstances. The court has to indulge in a process of balancing.
66. The alleged misconduct claimed to have been done by the respondent Hari Singh has also not been treated to be a major delinquency by the respondent in the light of the principles laid down in Meera Rawther (Supra). It, therefore, has to be held that the delay in initiating disciplinary proceedings would constitute denial of reasonable opportunity to defend the charges in the case and therefore, amounts to violation of principles of natural justice.
67. The plea of the petitioners that they did not have the original documents or certified copies thereof is baseless and rightly rejected by the Tribunal in the impugned order. As noted above, the petitioners were in possession of photocopy of original shipping bills which photocopy had been prepared by them and were available throughout. Even if the plea that the original documents or certified copy were necessary for initiating the disciplinary proceedings were to be accepted, the action of the respondents was grossly belated and certainly the long period which has lapsed was not necessary for procuring the same.
68. The respondents have failed to provide a sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the petitioner. It is true that in Government of Andhra Pradesh and Ors Vs. Appala Swamy (ibid), the Honble Supreme Court declined to quash the disciplinary proceedings on the ground of delay and viewed that ordinarily the Tribunal or the High Court should not have interfered therewith. For easy reference, para 11 and 12 of the judgment are extracted hereinbelow:-
11. It may be true that there was some delay on the part of the appellants to conclude to departmental proceedings. The Tribunal did not accept the contention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required to consider the question as to whether, in the facts and circumstances of this case, particularly in view of the nature of the charges leveled against the respondent as also the explanation offered by the appellants in this behalf, it was a case where the entire proceedings should have been quashed. The High Court in its impugned judgment did not address itself the said question. It, as noticed hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court furthermore did not determine the question as to whether a proceeding could have been initiated against the respondent in terms of Rule 9 of the Anadhra Pradesh Civil Service (CCA) Rules, 1963. If it is held that the second proceeding was maintainable in terms of the extant rules, ordinarily, the Tribunal or the High Court should not have interfered therewith. This aspect of the matter is concluded by the decisions of this Court in State of Uttar Pradesh vs. Braham Dutta Sharma & Anr. ( 1987 (2) SCC 179) and State of U.P. & Ors Vs. Harihar Bhole Nath ( 2006 (11) SCALE 322).
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid done therefore. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:-
Where by reason of the delay, the employer condoned the lapses on the part of the employee;
Where the delay caused prejudice to the employee Such a case of prejudice, however, is to be made out by the employer before the Inquiry Officer. Nevertheless, the said judgment could be taken note of by Honble Delhi High Court in UOI & Anr Vs Hari Singh (ibid) and it could be viewed that even as per the said judgment also, no hard and fast rule can be laid down regarding interference with the disciplinary proceeding on the ground of delay. Honble High Court could also take note of the judgment of Honble Supreme Court in Chairman, LIC of India and Ors. Vs A. Masilamani (JT 2012) (11) SC 533), wherein after taking note of the view taken by Honble High Court, the Honble Supreme Court remitted the matter back to disciplinary authority to enable it to take a fresh decision taking into consideration the gravity of the charges involved in the matter. Para 7 and 12 of the judgment are extracted hereinbelow:-
7. In the present case, the High Court after reappreciating the entire evidence available on record, came to the conclusion that in the course of enquiry proceedings, certain witnesses had not been examined in the presence of the delinquent respondent, and that hence, no proper opportunity was given to him to cross-examine such witnesses. Moreover, the documents relied upon by the Enquiry Officer, were not properly proved by any witness and ultimately, it was held that the findings of the Enquiry Officer stood vitiated, for non-compliance with mandatory requirements of the regulations applicable herein, as well as for violating of the principles of natural justice. The court further held that the Appellate Authority had not applied its mind to the case, and had failed to consider the case as required under Regulation 46(2), of the Regulations, 1960. Thus, in light of the aforementioned observations, the court set aside the punishment imposed upon the respondent, and also refused to give the appellant any opportunity, to continue the enquiry from the point that it stood vitiated, consequently therefore, denying any opportunity to prove the documents relied upon, as also denying the respondent adequate opportunity to cross-examine the concerned witnesses etc., only on the ground that a long time had now passed.
xxx xxx
12. The instant case requires to be considered in the light of the aforesaid settled legal propositions.
12.1. After hearing the counsel for the parties, we are of the view that the impugned judgment and order dated 10.1.2011, in Writ Appeal No. 7 of 2011, as well as the order of the learned Single Judge dated 17.2.2010, passed in Writ Petition No. 11152 of 2002, cannot be sustained in the eyes of law and are therefore hereby, set aside. The present appeal is allowed. The matter is remitted to the disciplinary authority to enable it to take a fresh decision, taking into consideration the gravity of the charges involved, as with respect to whether it may still be required to hold a de novo enquiry, from the stage that it stood vitiated, i.e., after issuance of charge-sheet.
12.2. The disciplinary authority while taking such a decision must bear in mind that charges are merely technical as the loan was taken for construction of a residential premises and the said loan was used effectually to construct the premises as per sanctioned plan and only then the premises was put to commercial use.
12.3. In the event the authority takes a view, that the facts and circumstances of the case require a fresh enquiry, it may proceed accordingly and conclude the said enquiry, most expeditiously.
6. In Anant R. Kulkarni Vs. Y.P. Education Society and Ors ( 2013) 6 SCC 515) relied upon by Mr. R.N. Singh, learned counsel for respondents, the Honble Supreme Court viewed that the Courts/Tribunal should not generally set aside departmental enquiry and quash charge sheet on the ground of delay in institution of the proceedings. Para 14 of the judgment reads as under:-
The Court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limits of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show-cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by the court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question must be carefully examined taking into consideration the gravity/magnitude of the charges involved therein. The court has to consider the seriousness and magnitude of the charges and while doing so the court must weigh all the facts, both for and against the delinquent officers and come to the conclusion which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration that the said proceedings are allowed to be terminated only on the ground of delay in their conclusion. ( Vide State of U.P. v. Brahm Datt Sharma ( 1987) 2 SCC 179), State of M.P. V. Bani Singh ( 1991 SCC (L&S) 638), State of Punjab v Chaman Lal Goyal ( 1995) 2 SCC 570), State of A.P. V. N.Radhakishan ( 1998) 4 SCC 154), M.V.Bijlani v. Union of India ( 2006) 5 SCC 88), Union of India v. Kunisetty Satyanarayana ( 2006)12 SCC 28), Ministry of Defence v. Prabhash Chandra Mirdha ( 2012) 11 SCC 565) and LIC V. A. Masilamani (2013 (6) SCC 530). We have the judgment of Honble Delhi High Court in UOI & Anr Vs. Hari Singh (ibid) as also the judgment of Honble Supreme Court indicating the scope of interference with the chargesheet on the ground of delay. Once in the same facts, Honble Delhi High Court has taken a view, it is not open to the Tribunal to take a different view under any circumstances particularly when the judgment of the Honble Supreme Court relied upon by learned counsel for the respondents could be taken note of by Honble Delhi High Court. As has been viewed by the Honble Supreme Court in Divisional Controller, KSRTC Vs Mahadeva Shetty and Another (2003) 7 SCC 197), a decision often takes its colour on the question involved in the case in which it is rendered. When the present OA arises from the same facts in which the Honble Delhi High Court delivered the decision ( UOI & Anr Vs. Hari Singh), this Tribunal needs to follow the same and give due regard to the judgment of Honble Delhi High Court. A decision is sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may also decide in favour of one party because of point A which it considers and pronounces upon. It may be seen, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
7. In Municipal Corporation of DelhiVs.Gurnam Kaur (1989 (1) SCC 101), the Honble Supreme Court viewed that the precedents sub silentio and without argument are of no moment. For easy reference, para 11 and 12 of the judgment are extracted hereinbelow:-
11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in JamnaDas' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P. J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p. 153 in these words :
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."
12. In Gerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905 the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., (1941) 1 KB 675, the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M. R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier Court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority. In the present case, the judgment of Honble Delhi High Court in UOI & Anr Vs. Hari Singh( ibid) is in the same facts and thus binding on us. In view of the binding judgment of Honble Delhi High Court, we need not refer to the orders of the Tribunal, thus are not required to analyze the principle of judicial discipline laid down by the Honble Supreme Court in SI Roop Lal and Ors Vs. Lt. Governor through Chief Secretary and Ors decided on 14.10.1999 (JT 1999 (9) SC 597). However, we find that in para 12 of the judgment of Honble Supreme Court in Government of Andhra Pradesh and Ors. Vs. AppalaSwamy (ibid), it is specifically provided that the principles upon which a proceeding can be directed to be quashed on the ground of delay are:- (i) the presumption that the lapses on the part of applicant condoned (ii) the delay caused prejudice to the employee and the case of prejudice need to be made out by the employee before the enquiry officer. It may be open to the inquiry officer to take a view whether the delay caused prejudice to the defence of the delinquent or not, but as far as the principle whether the delay would amount to condonation of lapse, it may only be in the competence of the disciplinary authority to take a view on the same. When we are bound by the judgment of Honble Delhi High Court in UOI & Anr Vs. Hari Singh (ibid), we are also bound by the principle laid down in para 12 of the judgment of Honble Supreme Court in Government of Andhra Pradesh and Ors. Vs. Appala Swamy (ibid). Thus, having due regard to the view taken in para 12 of the judgment of the Honble Supreme Court in Government of Andhra Pradesh and Ors. Vs. AppalaSwamy( ibid), we dispose of the OA giving liberty to applicants to make a detailed representation to the disciplinary authority/enquiry officer against the chargesheet within one week from the date of receipt of a copy this order and a direction to the disciplinary authority/enquiry officer ( as the case may be) to decide the same within four weeks, keeping in view the judgment of Honble Delhi High Court in Union of India and Anr. Vs. Hari Singh (WP (C) No. 4245/2013) dated 23.09.2013) and UOI & Anr Vs. Madan Lal (WP (C) 3944/2012) dated 1.10.2013. No costs.
( A.K.Bhardwaj) ( Sudhir Kumar) Member (J) Member (A) sk ..