Central Administrative Tribunal - Ernakulam
Gopinath Np vs Secretary Ministry Of Finance New Delhi on 18 October, 2022
1 CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, ERNAKULAM Original Application No. 180/00779/2018 Original Application No. 180/00085/2019 Tuesday, this the 18th day of October, 2022 CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J) Hon'ble Mr. K.V. Eapen, Member (A)
1. Original Application No. 180/00779/2018 -
Gopinath N.P., aged 47 years, S/o. late Sekhar P.K., Inspector of Customs, Air Customs, Calicut International Airport, Karipur, Malappuram - 673647, residing at Layam, Kunduparamb, Post Edakkad, Kozhikode-673005. ..... Applicant (By Advocate : Ms. Maitreyi S. Hegde) Versus
1. Union of India, represented by the Secretary to the Government of India, Ministry of Finance, Department of Revenue, North Block, New Delhi - 100001.
2. The Chief Commissioner of Central Excise, Customs and Service Tax, Kerala Zone, Central Revenue Building, I.S. Press Road, Kochi - 18.
3. The Commissioner of Central Excise and Customs, Central Revenue Building, I.S. Press Road, Kochi - 18.
4. The Joint Commissioner (P&V), Central Excise and Customs, Central Revenue Building, I.S. Press Road, Kochi-18.
5. The Commissioner of Central Excise and Customs, Calicut Commissionerate, Central Revenue Building, Mananchira, Calicut - 673 001. ..... Respondents (By Advocate : Mr. Thomas Mathew Nellimoottil, SCGC) 2
2. Original Application No. 180/00085/2019 -
Jayasree P., D/o. Sri C.K. Purushothaman, aged 55 years, Superintendent of Central Tax and Central Excise, Central Tax Commissionerate, Cochin, Residing at 35/238A, Automobile Road, Palarivattom, Kochi - 682025. ..... Applicant (By Advocates : Mr. O.V. Radhakrishnan, Sr. along with Ms. K. Radhamani Amma) Versus
1. Union of India, represented by Secretary, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, HUDCO Vishala (9th Floor), Bhikaji Cama Place, R.K. Puram, New Delhi - 110 066.
2. Central Board of Indirect Taxes and Customs, Represented by its Chairman, North Block, New Delhi-110001.
3. Chief Commissioner of Central Tax, Central Excise and Customs, Thiruvanthapuram Zone, Central Revenue Building, I.S. Press Road, Cochin - 682 018.
4. Commissioner of Central Tax and Central Excise, Kochi Commissionerate, Central Revenue Building, I.S. Press Road, Kochi - 682 018.
5. Joint Commissioner (P&V), Office of the Commissioner of Central Tax and Central Excise, Kochi Commissionerate, Central Revenue Building, I.S. Press Road, Kochi - 682 018. ..... Respondents (By Advocate : Mr. N. Anilkumar, SCGC) 3 These Original Applications having been heard on 27.09.2022, the Tribunal on 18.10.2022 delivered the following:
Common O R D E R Per: Justice Sunil Thomas, Judicial Member -
Common facts in OA No. 85/2019 and OA No. 779/2018 -
The applicant in OA 85/2019 was an Inspector of Central Excise and Customs under the respondents. She challenges the penalty imposed on her and the related orders in appeal and revision preferred by her, challenging the penalty order.
2. CBI registered RC No. 26(A)/2005/CBI/ACB/KER against 36 officers working in various categories in the Central Excise and Customs Department and were posted at Calicut Airport, during the period August 2005 to November, 2005. The offences alleged against those accused were under Section 120B IPC and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. It was alleged in the charge sheet that the above officers entered into a criminal conspiracy to obtain undue pecuniary advantage for themselves by receiving illegal gratification from passengers arriving at Calicut Airport from foreign countries. The bribe so collected were entrusted to certain third parties, including one P.P. Abdul Rehman alias Paithal, who used to distribute the respective shares to accused and other non-accused officers of the Customs Department. It was alleged that each of them received specified amount. On the basis of the crime registered, investigation was conducted and after conclusion of 4 investigation, final report was laid. All the accused faced prosecution in the above crime which was finally tried by the Court of Special Judge (SPE/CBI)-II, Ernakulam in CC No. 7/2007. Records reveal that all of them were acquitted.
3. Alleging that in the course of investigation of RC 26(A)/2005, it was revealed that a system of bribe collection from the passengers existed, and that several officers of Customs on duty at Calicut including the applicants herein were party to the system of receiving their portion of bribe, several officers who were not arrayed as accused in RC No. 26(A)/2005 including the applicant herein and 22 other officers were charge sheeted. Annexure A1 is the memorandum of charge in so far as it relates to the applicant herein.
The statement of article of charge framed against the applicant in OA 85/2019 reads as follows:
"During the course of investigation in RC 26(A)/2005 registered by the Central Bureau of Investigation against officers working in Calicut Airport, Karipur, it was revealed that a system of bribe collection from passengers arriving from abroad was prevalent in the Calicut Airport since February, 2005 and the Station Duty Officer, Shri C.J. Thomas, Inspector and subsequently Shri T.C. Rajkumar, Inspector, used to give directions to Shri P.P. Abdul Rehman @ Paithal, a private person, to distribute the bribe collection among the Customs officials working at Calicut Airport. Smt. P. Jayashree, while functioning as Inspector of Central Excise & Customs, Calicut Airport, during the period from 1.9.2005 to 2.11.2005, failed to maintain absolute integrity and acted in a manner unbecoming of a Government Servant, in as much as she received fortnightly share of bribe collected by Customs officials from the passengers arriving from abroad".
The above applicant denied the allegations and submitted Annexure A2 reply. A composite inquiry was ordered against all the 23 officials. Nine witnesses were examined by customs department and 10 documents were marked, before the inquiry officer. By Annexure A3 report, the inquiry 5 officer found the above applicant guilty. Annexure A7 is the penalty imposed on the applicant. By the above order the pay of the applicant was reduced by one stage from Rs. 18,030/- and GP Rs. 4,800/- to Rs. 17,360/- and GP Rs. 4,800/- in the time scale of pay of Rs. 9,300-34,800/- and GP Rs. 4,800/- for a period of one year w.e.f. 1st May, 2011 under Rule 11(5) of the CCS (CCA) Rules, 1965. It was further ordered that the applicant will not earn increments of pay during the period of reduction and that on expiry of the period, the reduction will have the effect of postponing her future increments of pay.
4. She preferred an appeal. It was rejected by Annexure A10 order. Challenging the order of appeal and the penalty imposed on her she preferred a revision to the Government. It was dismissed by Annexure A15 order.
5. Aggrieved by the above orders the applicant has preferred this OA specifically challenging Annexure A1 memorandum of charges, Annexure A3 inquiry report, Annexure A7 order imposing penalty, Annexure A10 order in the appeal and Annexure A15 order in the revision.
6. The applicant in O.A No.779/2018 who was working as a Tax Assistant at the Calicut Airport during the period 20.5.2005 to 1.6.2006 was served with Annexure A1 charge sheet in similar lines as that of the applicant in O.A No. 85/2019. It was alleged therein that the applicant was a beneficiary 6 of bribe collection by Customs Officials at Calicut Airport and along with one P.H Noushad, Stenographer, he received from Shri.P.Ramachandran, Havildar, a sum of Rs.12,000 as his share of bribe for the period 16.9.2005 to 30.9.2005. It was alleged that the delinquent thus failed to maintain absolute integrity and acted in a manner unbecoming of a government servant, as he received share of bribe collected by the customs officials, from the passengers arriving from abroad at the Airport.
7. On the same set of materials as that of the applicant in O.A No.85/2019 placed before the inquiry officer he concluded that though neither in the statement of P.P. Abdul Rehman nor in the list recovered from his residence, the name of the applicant herein appeared, the confession statement of the above witness confirmed that bribe amount meant for Ministerial staff was given to Shri.Ramachandran, Havildar. Hence the possibility of the share reaching the delinquent existed. The inquiry officer in Annexure A2 Report had specifically recorded that though there was no direct evidence to conclusively establish that the said amount reached the hands of N.P Gopinath, the delinquent, in a system of distribution of individual shares as in matters of this unlawful activity, the entire transaction depend on mutual trust and without any hassle, the same will be executed. Holding that in a departmental enquiry, preponderance of probability only was required and the material placed on record should stand the test of reasonableness, consistent with human conduct and probabilities, it was concluded that the applicant had received his portion of shares.
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8. By Annexure A3 order the pay of the above applicant was reduced by one stage for a period of one year with effect from 1st May, 2011 and that he will not earn increments of pay during the period of deduction and that on expiry of this period, the reduction will have the effect of postponing his future increments of pay. Applicant preferred an appeal, which was dismissed by Annexure A4 order. Aggrieved by it, applicant preferred a revision to Government, which was rejected by Annexure A7 order. Consequently, the applicant has approached this Tribunal, challenging the proceedings with a prayer to quash Annexure A1 report and Annexures A3, A4 and A7.
9. Heard the learned Senior Counsel for the applicant in OA No. 85 of 2019, the learned counsel for the applicant in OA No. 779 of 2018 and the respective Standing Counsel for the Customs and the Excise Department in each application.
Preliminary objection in OA 85/2019 and the finding -
10. Assailing the impugned order in OA No. 85 of 2019, the learned senior counsel for the applicant contended that Annexure A1 charge was vague. It was contended that no prima facie evidence or material was shown to exist in Annexure A1 charge or statement of imputations. It was further contended the date, the details and the quantum of amount allegedly received by the applicant were not disclosed.
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11. To substantiate the contention of the learned senior counsel that if the charge is vague, it will prejudice the delinquent, who will be deprived of his valuable opportunity to effectively defend the allegations, the learned senior counsel placed reliance on Surath Chandra Chakravarty v. The State of West Bengal ( AIR 1971 SC 752) and Union of India & Ors. v. Gyan Chand Chattar [(2009 )12 SCC 78]. In Surath Chandra Chakravarty's case (supra), it was held that the charges therein were so vague that it was not capable of being intelligently understood and was not sufficiently definite to furnish materials to the applicant to defend himself. It was precisely the reason why Fundamental Rule 55 provides that the charge should be accompanied by a statement of allegations. The whole object of statement of allegations was to give all necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up a defence. The applicant in that case repeatedly and at every stage had brought to the notice of the inquiry officer that he was supplied with a vague charges.
12. In Gyan Chand Chattar's case (supra), the Hon'ble Supreme Court, relying on Surath Chandra Chakravarty's case (supra), reiterated that the inquiry on a vague charge cannot survive, since it does not give a clear picture to the delinquent to make an effective defence because he may not be aware as to what was the allegation against him and what type of defence he can put up in rebuttal. Concluding the legal position involved, it was held that inquiry has to be conducted against any person giving strict adherence 9 to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No inquiry can be sustained on vague charges. Inquiry has to be conducted fairly and objectively, but not subjectively, it was held.
13. A reference to the above charge sheet shows that the period of incident was specified as 16.9.2005 to 30.9.2005. The total amount collected was Rs. 1,50,700/- which was handed over to one P.P. Abdul Rehaman. Applicant allegedly received share of it. It is true that the share of bribe received by her was not specifically mentioned. However, it appears that sufficient details were furnished in the charge memo and the memorandum, to keep the applicant in notice regarding the nature of allegations, the period during which she allegedly received, the person from whom it was received and the total amount collected. It is also pertinent to note that in Annexure A2 reply to the charge memo, she had no case that the memo was vague. Even at the initial stage she did not set up a case that the charge sheet issued to her was vague or that it disabled her from effectively defending the case. Hence, we are not inclined to accept the contention of the learned Senior Counsel that the charges were vague.
Common contentions in OA 85/2019 and OA 779/2018 and the findings -
14. Advancing the next limb of argument, the learned senior counsel for the applicant in OA No. 85 of 2019 and the learned counsel for the applicant in OA No. 779/2018 contended that this was a clear case in which the 10 applicants were proceeded against without any evidence at all. The charges were not proved by any iota of legally admissible evidence. Both contended that it was a clear case of no evidence. The learned senior counsel further contended that even the conclusions arrived at by the inquiry officer were illogical, largely unsustainable and no reasonable person could have arrived at such conclusions. The basic conclusions arrived at by the authority were only based on surmises and assumptions.
15. In both the inquiry reports the inquiry officer has essentially considered the materials in the light of the charge sheet and concluded that the statement of article of charge consist of three parts as follows:
A) A system of bribe collection from passengers arriving from abroad was prevalent in Calicut Airport since February, 2005. B) Shri C.K. Thomas, Inspector and subsequently T.C. Rajkumar, Inspector used to give directions to P.P. Abdul Rehman, to distribute the bribe collection among the custom officials working at Calicut Airport.
C) That the applicants in OA Nos. 85 of 2019 and 779 of 2018 while functioning as the Inspector and Tax Assistant of Customs and Central Excise at Calicut Airport during the period 1.9.2005 to 2.11.2005 failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant in much as they received fortnightly share of bribe collected by the customs officials from the passengers arriving from abroad.11
16. To sustain part-A of the above charge, the enquiry officer essentially relied on S1 and S10 which were the confession statement of SW1-P.P. Abdul Rehman and the statement of one Vijayan. This was sought to be supported by a list of shares, which was allegedly recovered from P.P. Abdul Rehman. To sustain part-B of the allegations, the inquiry officer relied on the statement of three persons who were examined as witnesses before the inquiry officer. To sustain part-C of the allegations, he relied on S6 and S7 joint inspection reports, S8 the search list of bribe allegedly maintained by SW1-P.P. Abdul Rehman, S9, the account of bribe distribution from 16.9.2005 and 30.9.2005 and S10 the confession statement given by P.P. Abdul Rehman.
17. The appreciation of facts done by the inquiry officer reveal that he has heavily relied on S10, the confession statement given by P.P. Abdul Rehman to the judicial magistrate, recorded 25.3.2006 and marked as S10 before the inquiry officer. The said confession statement of SW1 dated 6.5.2006 which was marked as S1 was produced in OA 85/2019 as Annexure A6. S10 the confession statement dated 25.3.2006 which was produced along with the above OA as Annexure A5.
18. Since the inquiry officer heavily relied on the confession statement, the evidentiary value of the confession statement, in this proceedings has to be seriously looked into. It is available from the records that when examined as a witness in the criminal case, said Abdul Rehman turned hostile and did not 12 support the prosecution case. He was declared as hostile and his confession statement was not relied on by the learned Sessions Judge. In the light of the above the evidentiary value of the retracted confession of the co-accused has to be looked into.
19. To contend that the retracted confession statement of a witness has only a limited value, the learned senior counsel for the applicant relied on the decisions reported in Ram Kishan Singh v. Harmit Kaur & Anr. (AIR 1972 SC 468) and Baij Nath Sah v. State of Bihar [(2010) 6 SCC 736]. The contention of the learned senior counsel was that a confession statement has only a limited value and needs to be corroborated at least on material particulars. It was contended that in this case, the confession was not only retracted, further it was not the retracted confession statement of the delinquent, but was that of a co-accused. It is also pertinent to note that in the criminal trial, both the applicants were not arrayed as accused and they did not face the prosecution. Retracted confession of an accused was sought to be relied in a disciplinary proceeding against persons who were never arrayed as an accused. Hence, it could not be used for any purpose, it was argued. In Ram Kishan Singh's case (supra) it was held by the Hon'ble Supreme Court that a statement under Section 164 of Code of Criminal Procedure is not a substantive piece of evidence. It can be used only to corroborate the statement of a witness and to contradict the witness. In Baij Nath Sah's case (supra), relying on Ram Kishan Singh's case (supra), the Hon'ble Supreme Court reiterated that a statement given under Section 164 13 of Cr.PC was not a substantive piece of evidence and can be utilized only to corroborate or contradict the witnesses, vis-à-vis statement made in court. In other words, it can be utilized as the previous statement and nothing more. In Roop Singh Negi v. Punjab National Bank & Ors. [(2009) 2 SCC 570], the delinquent employee was found guilty in a departmental proceeding only on the basis of his confessional statement to the Police. It was held that some more evidence ought to have been brought on record to establish the allegation. This contention of the learned senior counsel was substantially supported by the learned counsel for the applicant in OA 779/2018. She further supplemented the argument referring to the decisions in G.M. Tank v. State of Gujarat & Ors. [(2006) 5 SCC 446] and R. Shaji v. State of Kerala [(2013) 14 SCC 266].
20. Further advancing the above contention, the learned senior counsel as well as counsel for the applicant in OA 779/2018 contended that the Sessions Court, not only did not rely on the retracted confession statement, but had held that the confession statements were improperly recorded. The enquiry officer could not remain oblivious about the judgment of acquittal rendered after a full fledged trial, it was contended. The learned senior counsel placed reliance on Narinder Mohan Arya v. United Insurance Company Limited & Ors. [(2006) 4 SCC 713] wherein on an identical question it was held by the Hon'ble Supreme Court that it was beyond any controversy that some weightage should be given by the authorities in disciplinary proceedings, to inter parte decision of Civil Court. 14
21. Answering the above contention, the learned SCGC relied on the decision of the Hon'ble Supreme Court in Pyare Lal Bhargava v. State of Rajasthan (1963 AIR 1094) wherein it was held that a retracted confession may form the legal basis of a conviction, if the court was satisfied that it was true and was voluntarily made. But it was cautioned that the court shall not base a conviction on such a confession, without corroboration. It was not a Rule of law, but was only a Rule of evidence. It was also reiterated that it cannot even be held down as an inflexible Rule of practice or prudence that under no circumstance such a conviction can be made without corroboration, or a court may in a particular case be convinced of the absolute truth of a confession and be prepared to act upon it, without corroboration, but it may be laid down as a general Rule of practice that it was unsafe to rely upon a confession, much less a retracted confession unless the court was satisfied that retracted confession was true and voluntarily made and has been corroborated in material particulars. As correctly said by the learned SCGC a finding in a criminal court may not always be a ground for disbelieving the version in an inquiry proceedings. It was held in Commissioner of Police, New Delhi v. Narender Singh (2006 KHC 574) that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a department proceedings against him or should drop the same in the event of an acquittal is passed.
22. In this context, the manner in which the confession statements of the approvers who were examined before the Sessions Court as PW1, PW2 and 15 PW13 and how their evidence was evaluated by the Sessions Court need also to be looked into. The learned Sessions Judge did reject the evidence of the approvers solely considering the fact that all of them turned hostile before the Sessions Judge. He found that the witnesses had stated that they were compelled to depose before the Magistrate under threat or duress of the CBI officials. They also asserted that they did not know about the facts stated in the statements recorded by the Magistrate. They turned hostile and did not in any manner, support the statements given to the Magistrate. Before the Sessions Court, the learned prosecutor relied on Section 80 of the Evidence Act and called upon the court to accept Exhibit P1, P7 and P13, the confessions statements of PW1, PW2 and PW13 respectively. The court rejected that contention and held that threat or coercion on the part of the CBI officials could not be ruled out. The court took note of the fact that the Magistrate was not examined. The Sessions Judge held that in the above circumstance accused cannot be fastened with the retracted confession of the witness. It was also held by the court that Section 164 Cr.PC statement can only be used to corroborate other evidence. However, the only evidence laid before the Session Court was the confession statement. Another aspect relied on by the Session Judge to reject the confession statement was that it was not recorded in compliance with Rule 70 of the Criminal Rules of Practice. Hence, the Court concluded that the retracted confessions were not legally and factually sustainable.
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23. On the other hand, the legality of the recording of the evidence was considered by inquiry officer. The inquiry officer in his inquiry report seen at page 27 of Annexure A3 held that on a reference of the statement given by Abdul Rehman it was clear that the Magistrate has put several questions to the deponent as proceeding to ascertain the voluntary nature of the statement entered by him and on being convinced that he was giving the statement without any inducement of threat on the part of the CBI or anybody, and that it was voluntarily made, the confession was recorded. According to the inquiry officer, it was seen from the records that the deponent was made aware of the fact that based on the statement of deponent could be punished by Court. It is true that the confession statement produced before this Tribunal as S10 shows that few questions touching on the facts and leading to the confession statement were put by the Magistrate. Thereafter it was recorded that he was satisfied that the witness was aware of the legal consequences of giving such a statement. Based on it, it was concluded by the inquiry officer as sufficient to satisfy the requirement under Rule 70 of the Criminal Rules of Practice. It seems to be an absolutely mistaken interpretation of law. Rule 70 provides that no Magistrate shall record any statement or confession made by an accused under Section 164 of the Code until the Magistrate has first recorded in writing his reasons for believing that the accused was prepared to make the statement voluntarily and until he has explained to the accused that he was under no obligation to answer any question at all and has warned the accused that it was not intended to make him an approver and anything he says may be used against them. This 17 mandatory requirement of Rule 70 was not followed by the Magistrate, as correctly found by the learned Sessions Judge. Hence, the Section 164 statement heavily relied on by the inquiry officer was correctly rejected by the Session Judge on legal points and in the eye of law it was not properly recorded. This finding goes to the very legality of the Section 164 Cr.PC statement. Hence, the credibility of the above is absolutely doubtful in the case at hand. This assumes significance since the only crucial material relied on by the inquiry officer to arrive at a conclusion of guilt as against both the applicants was essentially the confession statement alone. Since the statements under Section 164 Cr.PC were recorded in complete breach of the procedure, it could not have been relied upon, for any purpose. Further, even the persons who gave the statements retracted from it.
24. Though we have already held that the retracted confession of the accused ought not have been legally accepted and relied on, by the Inquiry Officer, still we are inclined to consider on merits as to whether the said confession statements, along with the other materials placed before the Inquiry Officer brings out any material to establish the guilt of both the applicants. The learned senior counsel while reminding us about jurisdiction of the Tribunal in appreciating the materials placed before the Inquiry Officer, invited our attention to the decision of the Hon'ble Supreme Court in Union of India v H.C. Goel [AIR 1964 SCC 364] and Roop Singh Negi v. Punjab National Bank & Ors. [(2009) 2 SCC 570]. In H.C. Goyal's case (supra), it was held that in dealing with the writ petition filed by the public 18 servants who have been dismissed or otherwise dealt with to attract Article 311 of the Constitution of India, the High Court under Article 226 has jurisdiction to inquire whether the conclusion of the Government on which the impugned order of dismissal rest, was not supported by any evidence at all. It was held that if it was proved that there was no evidence to support the conclusion of the Government, writ of certiorari will be issued, without further proof of malafides.
25. In Roop Singh Negi's case (supra) it was reminded by the Supreme Court that though indisputably departmental proceeding was a quasi judicial proceeding, the inquiry officer performs a quasi judicial function. The charges leveled against the delinquent must be found to have been proved. The inquiry officer has a duty to arrive at a finding upon looking into the consideration the materials placed before it by the parties. If the whole of the evidence in the inquiry is accepted as true, he should consider whether the conclusion follow that the charge in question was true against the respondent. The learned senior counsel to contend that if there was no evidence to support the misconduct alleged, the delinquent cannot be proceeded against, placed reliance on the decision in Union of India & Ors. v. Gyan Chand Chattar [(2009) 12 SCC 78]. To buttress the above contention, the learned counsel in OA 779/2018, also relied on a catena of decisions wherein it was held that the inquiry officer should support his conclusion, based on some legally admissible evidence and when it was established that there was absolutely no evidence at all to support it, the 19 Court was entitled to interfere in. The learned counsel relied on the decisions reported in V. Ramana v. A.P. SRTC & Ors. [2005 (7) SCC 338], Union of India v Parna Nanda (AIR 1989 SC 1185) and Ministry of Finance v. S.B. Ramesh [(1998) 3 SCC 227]. It was contended that strong suspicion alone cannot be the basis to hold delinquent guilty. She placed reliance on Union of India v. H.C. Goel [AIR 1964 SC 364].
26. On the other hand, the learned SCGC in O.A 779/2018 relied on the decisions reported in Vijay Kumar Nigam v. State of Madhya Pradesh & Ors. [(1996) 11 SCC 599], Ajith Kumar Nag v. General Manager (P.J.), Indian Oil Corporation Limited [(2005) 7 SCC 764] and Bhagwan Singh v. The State of Punjab [AIR 1952 SC 214]. The learned SCGC in O.A 85/2018 placed reliance on Lalit Popli v. Canara Bank & Ors. [Appeal (Civil) No. 3961 of 2001, dated 18.2.2003], B.C. Chaturvedi v. Union of India & Ors. [1995 (6) SCC 749] and the decision of the Hon'ble Supreme Court in Tiwari S. R. v. Union of India & Anr. [2013 (6) SCC 602]. In Lalit Popli 's case (supra) it was held that in a disciplinary inquiry, the technical Rules of evidence have no application. The doctrine of proof beyond doubt also has no application. Preponderance of probabilities and some material on record are necessary to arrive at a conclusion whether or not the delinquent has committed the misconduct. It was held that while exercising jurisdiction under Article 226 of the Constitution, the High Court does not act as an appellate authority, its jurisdiction was circumscribed by limits of judicial review to correct errors or law or procedural errors leading to manifest 20 injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.
27. In B.C. Chaturvedi's case (supra) it was held that disciplinary authorities and the appellate authorities being fact finding authorities, have exclusive powers to consider the evidence with a view to maintain discipline. The High Court/Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of High Court/Tribunal, it would appropriately mould the relief. In Tiwari S R's case (supra) it was held that in a disciplinary inquiry, findings of facts recorded by a Court can be held to be perverse, if the findings have been arrived at by ignoring or excluding a relevant material or by taking into consideration irrelevant/inadmissible evidence. Finding may also be said to be perverse, if it was against the weight of evidence.
28. The catena of decisions placed by both sides, clearly lay down the judicial parameters which limits the jurisdiction of Tribunal in interfering with the finding in a department proceeding or in the punishment, if, and only if, it was a case of no evidence. However, if there is some evidence, the Tribunal cannot go into the adequacy of evidence. It cannot also interfere with the punishment imposed unless, it was shockingly disproportionate to the guilt proved.
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29. With the judicial precedents in mind, we propose to examine the available materials. It is disclosed from the records that on getting secret information regarding the alleged practice of bribing in the Calicut International Airport, CBI Officers laid a trap. The conversation of the concerned customs official with the de facto complainant was recorded and immediately thereafter they were intercepted. A search was conducted at different parts of the airport, including the rest room of Air Intelligence Unit. The joint inspection reports so prepared are S6 and S7. In the course of investigation few incrementing materials are stated to have been recovered from SW1 P.P. Abdul Rehman. It includes S8 the search list relating to a list of bribe maintained by SW1. S9 is the account of bribe distribution from 16.09.2005 to 30.09.2005. S10 is the confession statement of Abdul Rehman.
30. Based on the materials placed before the inquiry officer, he arrived at a conclusion regarding the guilt of both the delinquent officers. In S8 and S9 names of few officers who allegedly received bribe during the period 16.09.2005 to 30.09.2005 are mentioned. At the outset it has to be reiterated that in S8 and S9 documents relied on by the prosecution, the names of both the applicants are not recorded. SW1 in his statement under Section 164 Cr.PC nor in his evidence before inquiry officer refer to the applicants by their names. The only material that was relied on by the inquiry officer to hold the applicant in OA 85/2019 guilty of charges was that in S8 there was a reference that bribe was handed over to one Unnikrishnan, on behalf of 22 "AIU". According to the customs department AIU indicated Air Intelligence Unit. Another set of bribe was meant to be given to "Mini". On the basis of the retracted confession of SW1, Abdul Rehman, the prosecuting agency tried to establish that 'Mini' indicated Ministerial Staff. Hence by a process of reasoning, the inquiry officer concluded that since one person has received bribe on behalf of AIU (Air Intelligence Unit) and the applicant in O.A No. 85/2019 was working in Air Intelligence Unit during the relevant time, it must be held that she has also received the bribe. By same process of reasoning, the inquiry officer held that since retracted confession along with S9 indicated that somebody has received bribe on behalf of Mini (Ministerial Staff), it must be presumed that the applicant in O.A 779/2018, who was a ministerial staff also has received bribe.
31. In the confession statement of P.P. Abdul Rehman which was marked as S10 before the inquiry officer and a copy of which was produced as Annexure A5 in the O.A 85/2019, certain incriminating materials were revealed. According to the above witness, during the month of March 2005, certain Havildars of Customs used to bring foreign currency to him. The Station Duty Officer C.J Thomas used to give him a list showing the share of each person to whom the bribe was to be given. The list was given after determining the shares of each Customs Officer. According to him, after deducting his own commission, the balance used to be kept with him and money was distributed among the concerned officers as per the list. According to him, Balakrishnan, Ramachandran and Raghuram the 23 Havildars used to bring money to him. SDOs Thomas and Rajkumar who succeeded him used to fix the shares. He further stated that he used to give shares to 9 named Superintendents, 8 Inspectors and 4 Havildars. He further added that, at the request of Sepoys and Ministerial staffs he used to entrust the total amount to one Raghuram, Balakrishnan, Korukutty and Ramachandran, In other words he has specifically mentioned the names of Superintendents who were given the shares. He also specifically referred to the names of Inspectors to whom bribes were given as per the list. He also stated that the amount due to Sepoys and Ministerial staff were entrusted to four different persons. His evidence does not disclose the names of the Sepoys or the Ministerial staff to whom, he had given the shares, since the amounts due to them were entrusted with other persons for being distributed among the Sepoys and Ministerial staffs. However, in the later course of his version, he stated that the abbreviations found in the chit recovered from him as 'Mini' indicated Ministerial staff, 'Sipa' Sepoys and 'AIU' meant Air Intelligence Unit. On the basis of these materials the Inquiry Officer concluded that all the Officers/Staffs of AIU, Ministerial staffs and Sepoys had received their share of bribes, though the witness did not specifically state that all the Inspectors of AIU and all the members of Ministerial staff were given bribe.
32. Coming to the case of the applicant in O.A No.85/2019, it is pertinent to note that the names of all the Inspectors who were given bribes as per the list were specifically mentioned by the witness. The name of the applicant in 24 O.A 85/2019 is conspicuously absent. His version only speaks that he has no case that money was given to all the Inspectors of 'AIU'. The Inquiry Officer committed a fundamental mistake by assuming that since in the slip 'AIU' was mentioned, it should indicate that money was entrusted to somebody for being given to "all the members of 'AIU'". By this process of reasoning the applicant in O.A 85/2019 was found guilty. As far as the applicant in O.A 779/2018 was concerned, he was a member of the Ministerial staff.
33. On the same analogy, by assuming that since money was entrusted to somebody on behalf of' Mini' (Ministerial staff), again the Inquiry Officer committed the fundamental mistake by assuming that all the Ministerial staffs were given bribe and the money due to them was entrusted with somebody. This is absolutely without any basis. If that be so, there is no reason as to why, at least in the case of Inspectors, the witness should specifically name the persons who among the Inspectors were given the bribe. It should exclude necessarily other persons, who were not specifically mentioned. In other words, since neither in the evidence of the witness nor in the slip, the names of both applicants were mentioned, merely on the basis of the abbreviation as 'AIU' and 'Mini' a totally unwarranted conclusion that all the members who constituted 'AIU' and all the members who constituted "mini" should be presumed to have received the bribe was arrived at by the inquiry officer. Thus a total illogical conclusion was arrived at by the inquiry officer. It does not stand to reason as to why when the 25 witness specifically asserted the names of superintendents, Inspectors to whom bribes were given were mentioned, persons whose names were not mentioned should also be roped in. According to the inquiry officer, in the slip recovered from the residence of P.P. Abdul Rehman, it was indicated that a sum of Rs. 12,000/- was given as share of ministerial staff. It was entrusted to one Ramachandran. On the above basis the inquiry officer, without any direct evidence presumed that, the share of bribe had reached applicant in OA 779/2018 also. This was the fundamental error committed by the inquiry officer, which led him to presume that both the applicants have committed the misconduct.
34. According to inquiry officer, though, neither in the statement of three persons nor in S7 or S8 the name of the applicant in OA 85/2019 appeared, since she was at the relevant point of time working in the Air Intelligence Unit (AIU) and as per the above documents, share of the entire unit was received by K.Unnikrishnan, Inspector, the possibility of the bribe/shares reaching her hands existed. This to our mind, thus is a clear surmise which is based merely on an assumption that Mr.K.Unnikrishnan received the bribe for "all the members" of the 'AIU' which is not essentially borne by records. What SW1 had stated in S10 was that K. Unnikrishnan received the bribe on behalf of AIU, he did not state that it was on behalf of all members of AIU. According to the inquiry officer, in the above slip, it was mentioned as "1,50,700 x 9". According to one witness there was 9 Inspector in 'AIU' including the applicant in OA 85/2019 and hence, it was to be deemed that 26 the above applicant also received bribe.
35. Another material which was heavily relied on by customs department was S7 joint inspection report. The joint inspection was conducted on 02.11.2005, when the concerned accused official was intercepted by the CBI. S7 indicates that several Indian and foreign currencies and other foreign goods were recovered from various places in the Airport, including the arrival hall and duty officers' room. It was contended by the SCGC appearing for respondent in OA 85/2019 that the very fact that these items were kept in the duty officers' room, which was ordinarily occupied by the applicant in O.A 779/2018 and since she never complained about the process of bribing that occurred in the Air Intelligence Unit, it must reasonably be assumed, that she was also privy to the illegal transactions. It was also contended that it was a strong circumstance which indicated that she was also involved in the process of receiving bribe.
36. We are inclined to reject this argument for three specific reasons; S7 indicates that these items which were confiscated in the surprise search dated 02.11.2005 were not kept openly in the duty officers' room. On the other hand it indicates that they were recovered from the almirah and table used by the Superintendent, rest room of the custom's officers, counter in the arrival hall and a counter in the room of AIU. Clearly these items were kept concealed in almirahs or drawers. There is absolutely nothing on record to show that it was kept within the knowledge of the applicant in OA No. 27 779/2018. In fact, she was on leave on 02.11.2005, the day when search was conducted. Even assuming that she was aware that the system of collection of bribe existed, a serious liability having criminal repercussions cannot be cast on her, merely on assumptions. Even a strong suspicion howsoever strong cannot be a substitute for legally admissible evidence as consistently laid down by Supreme Court.
37. Yet another conclusion arrived at by the inquiry officer was that the applicants could not bring in any evidence to suggest that they had not accepted any bribe/share of bribe. On that basis, the inquiry officer concluded that possibly the applicants accepted their share of money. This again, is fundamentally wrong in so far as no adverse evidence could be drawn against the delinquent on the only basis that she could not establish her innocence. In other words, the delinquents cannot be fastened with the liability on the mere basis that negative evidence to the extent that they were innocent could not be produced by them.
38. On an overall evaluation of the entire materials, we are satisfied that the inquiry officer went wrong in accepting the retracted confession under Section 164 Cr.PC statement, since it was legally and factually not an acceptable material. Even assuming that the Section 164 Cr.PC statement could be accepted and the materials on record indicated that the system of bribe among the officials in the Calicut Airport existed, that does not ipso facto lead to the conclusion that the applicants had received the bribe 28 especially when the documentary and oral evidence did not specifically refer to their names.
39. The above facts clearly show that essentially the liability was cast on the applicants herein without any legally admissible evidence. There is no evidence to show that the money was meant for the entire AIU or ministerial staff. Merely because, if somebody received money stated to be on behalf of the ministerial staff, a liability which has of very serious consequence cannot be cast on a person on mere surmise. On an evaluation of the entire materials, we are satisfied that there is absolutely no material to connect the delinquents with the allegations and are clear cases of absolutely no evidence.
40. Having considered the entire materials in the above perspective, the reports of the inquiry officer and the consequential orders on appeal and revision are liable to be set aside. The inquiry reports are liable to be set aside holding that it was based on no evidence. Consequently, the punishments imposed on the delinquents are liable to be set aside.
41. Hence, both the O.As are allowed. The inquiry reports are set aside and all the consequential orders imposing penalty imposed on both the applicants are set aside. They will be given all consequential benefits as if no penalty was imposed on them. The entire arrears if any, due to them shall be calculated and paid within three months from the date of receipt of this 29 order. No costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
30
Original Application No. 180/00779/2018
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the memorandum of charge dated 22.2.2007
issued to the applicant.
Annexure A1(a) - True copy of the statement of article of charge framed against the applicant served along with the memorandum of charges.
Annexure A1(b) -True copy of the statement of imputation of misconduct served along with the memorandum of charges.
Annexure A2 - True copy of the inquiry report dated 30.7.2009 along with English translation.
Annexure A3 - True copy of the order C. No. H/10A/4/2007-Vig Cx dated 27.4.2011 imposing major penalty on the applicant. Annexure A4 - True copy of the order C. No. IV/16/420/20011 CC(K)-
IV dated 13.2.2012 rejecting the appeal of the applicant. Annexure A5 - True copy of the judgment dated 29.6.2016 in CC NO.
7/2007.
Annexure A6 - True copy of the order dated 26.5.2014 in OA No. 403/2012.
Annexure A7 - True copy of order No. 28/2017 dated 13.12.2017 issued by the first respondent rejecting the revision petition filed by the applicant.
Annexure A8 - True copy of the covering letter dated 25.1.2018 issued by the first respondent.
Annexure A9 - True copy of the transfer order 19.10.2016.
RESPONDENTS' ANNEXURES Nil Original Application No. 180/00085/2019 APPLICANT'S ANNEXURES Annexure A1 - Photocopy of the memorandum of charge dated 22.2.2007 of the 5th respondent.
31Annexure A2 - Photocopy of the written statement dated 16.3.2007 of the applicant to the 5th respondent.
Annexure A3 - Photocopy of the inquiry report dated 30.7.2009 along with covering letter No. C. No. II/10A/2007 Vig.
Cx./560/09 dated 14.8.2009 of the 5th respondent. Annexure A4 - Photocopy of the representation/written objection dated 29.9.2009 of the applicant to the 5th respondent.
Annexure A5 - Photocopy of the deposition of the P.P. Abdul Rahman @ Paithal S-10 dated 25.3.2006.
Annexure A5(A)- True English translation of Annexure A5. Annexure A6 - Photo copy of the deposition of P.P. Abdul Rahman @ Paithal SW-1 dated 29.11.2007.
Annexure A6(A)- True English translation of Annexure A6. Annexure A7 - Photo copy of the disciplinary order dated 26.4.2011 of the 4th respondent.
Annexure A8 - Photo copy of the appeal memorandum dated 29.7.2011 of the applicant to the 4th respondent.
Annexure A9 - Photocopy of the hearing note dated 16.12.2011 of the applicant before the 3rd respondent.
Annexure A10 - Photocopy of the order in appeal dated 7.2.2012 of the 3rd respondent.
Annexure A11 - Photocopy of the order dated 26.5.2014 in OA No. 691 of 2014 of this Hon'ble Tribunal.
Annexure A12 - Photocopy of the revision petition dated 16.7.2014 filed by the applicant.
Annexure A13 - Photocopy of the judgment dated 29.7.2016 in CC No. 7 of 2007 on the file of the Hon'ble Court of the Special Judge (SPE/CBI)-II, Ernakulam.
Annexure A14 - Photocopy of the addendum to the revision petition dated 27.10.2016 of the applicant to the 3rd respondent. Annexure A15 - Photo copy of the order No. 29/2017 dated 15.12.2017 Under Secretary to the Government of India.
32Annexure A16- Photo copy of the covering letter dated 5.2.2018 of the Asst. Commissioner (P&V), Central Tax & Central Excise, Kochi.
Annexure A17 - Photo copy of the final seniority list of Inspectors as on 1.1.2007 along with proceedings dated 5.12.2007 of the 5th respondent.
Annexure A18 - Photo copy of the order No. 128/2007 dated 15.10.2007 of the 4th respondent.
Annexure A19- Photo copy of the order No. 96/2012 dated 20.7.2012 of the 4th respondent.
Annexure A20 - Photo copy of the order No. 160/2016 dated 19.10.2016 of the Principal Commissioner, Central Excise, Customs & Service Tax, Cochin.
Annexure A21 - Photo copy of the order No. 161/2016 dated 21.10.2016 of the Principal Commissioner, Central Excise, Customs & Service Tax, Cochin.
Annexure A22- True copy of the Board's letter F. No. C-14010/5/2011- Ad.V., dated 24.2.2011 of the Deputy Secretary to the Government of India.
Annexure A23 - True copy of the S-9 document.
Annexure A24 - Photo copy of the order No. 128/2007 dated 15.10.2007 of the 4th respondent.
RESPONDENTS' ANNEXURES Annexure R1 - True copy of the judgment of Honorable Supreme Court in Pyarelal Bhargava Vs. State of Rajasthan.
Annexure R2 - True copy of the judgment in State of Haryana Vs. Rattan Singh.
Annexure R3 - True copy of the judgment of Honorable Supreme Court in Nelson Motis Vs. Union of India.
Annexure R4 - True copy of the judgment of Honorable Supreme Court in Orissa Mining Corporation Vs. Ananda Chandra Prusty.
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