Central Administrative Tribunal - Mumbai
Egidio M E D Silva vs M/O Finance on 6 March, 2025
1 OA No. 201/2021
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.201/2021
Order reserved on: 16.01.2025
Order pronounced on: 06.03.2025
Hon'ble Mr. Justice M.G. Sewlikar, Member (J)
Hon'ble Mr. Santosh Mehra, Member (A)
Egidio M.E.D' Silva,
S/o. Benjamin Benedito D'Silva,
Aged 74 years, lastly working as
Assistant Commissioner of Central
Excise, Mumbai-IV Commissionerate,
And residing at H.No.63/1, Ganeavaddo
P.O. Assolna Salcete, Goa- 403 701
E mail: [email protected]
-Applicant
(By Advocate Mr. Sai Kumar Ramamurthy)
Versus
1. Union of India through the
Secretary, Central Board of
Indirect Taxes and Customs,
Department of Revenue,
Ministry of Finance, Government of
India, 6th Floor, HUDCO Vishala
Building, Bikaji Cama Place,
New Delhi- 110 066.
2. The Commissioner of Central Excise
Mumbai IV Central Excise
Commissioner ate, Central Excise
Building, opp Churchgate Railway
Station, M.K. Road, Churchgate,
Mumbai- 400 001
3. Commissioner of Customs,
Customs House, Marmagoa Harbour
2 OA No. 201/2021
Vasco Da Gama- 403 803
- Respondents
(By Advocate Mr. Rishi Ashok h/f Mr. B K Ashok)
ORDER
Per: Justice M.G. Sewlikar, Member (J)
By this application, the applicant is challenging the order dated 24th November, 2020 (Annexure A-1) whereby the penalty of withholding of 100% pension and 100% gratuity on permanent basis has been imposed.
2. Facts in brief are that the applicant retired as Assistant Commissioner of Central Excise in the Mumbai (IV) Commissionerate at Mumbai on 31st August, 2006. 2.1 The applicant alleges that he received a memorandum dated 21st July, 2006 from the Commissioner of Customs (Exports), JNPT Customs House regarding certain irregularities in the passing of DEPB, DFRC by way of alleged addition in the shipping bill in the Export General Manifesto (EGM) by not following the Standing Order No. 5 of 2004 dated 05th February, 2004. It was alleged in the memorandum that the applicant deliberately did not follow 3 OA No. 201/2021 the Standing Order No. 52/2004 dated 31st December, 2004 which prescribes the procedure to be followed for amending EGM and failed to carry out the stipulated mandatory verifications before carrying out the amendments in the EGM through EDI System, presumably for monetary consideration and the applicant had fraudulently facilitated inserting (non-existing exports) 9 Shipping bills in the EGM, through his EDI login ID, wherein no physical exports had even taken place. These 9 shipping bills were filed under DEPB scheme and undue DEPB credit had been availed by the fraudsters against exports fraudulently shown to have been effected, thus causing loss to the tune of Rs. 62,01,420/- and also facilitated the fraudulent claim of rebate of Central Excise Duty against non-existing exports under 9 shipping bills out of which an amount of Rs. 57,39,258/- was already sanctioned towards claim under 6 of the said 9 shipping bills. According to the applicant, at that relevant time, Standing Order No. 4 of 2004 dated 5th February, 2004 was applicable. In response to the said memorandum, the applicant addressed a letter dated 01st August, 2006 to the 4 OA No. 201/2021 Commissioner of Customs (Exports), JNPT Customs House pointing out that he has not committed any irregularity and asked for certain details.
2.2 It is further alleged that the applicant retired on superannuation on 31st August, 2006 and all retirement benefits including entire gratuity, regular pension, full commutation value of pension, leave encashment have been paid to the applicant. Since then, he is drawing pension.
2.3 On 22nd July, 2009, the applicant received a letter in the name of President of India that President had given sanction for the initiation of departmental proceedings against the applicant. The applicant did not receive any chargesheet along with the said memorandum. 2.4 The applicant contends that the Enquiry Officer and Presenting Officer were appointed. The Enquiry Officer addressed a letter dated 13th December, 2010 to the applicant informing the applicant that the enquiry will be held on 11th January, 2011 at the Marmagoa Customs House, Goa. This enquiry commenced after about 15 5 OA No. 201/2021 months of the service of chargesheet on the applicant. The applicant received another notice dated 17th March, 2011 from Enquiry Officer wherein applicant was intimated that the enquiry would be held on 13th April, 2011 at Marmagoa Customs House, Goa.
2.5 Presenting Officer Shri R.R. Lotlikar submitted his brief. Copy of the Presenting Officer's brief was not forwarded to the applicant either by the Presenting Officer or by the Enquiry Officer. No witness was examined by the Enquiry Officer. On 4/6th August, 2012, applicant received Enquiry Officer's report. The said report was not accompanied by disagreement note. One year thereafter, the applicant received a letter dated 11th November, 2013 from the Assistant Commissioner (P & V) in the office of the Commissioner of Customs and Central Excise, Goa by which brief of Presenting Officer dated 28th April, 2011 was forwarded to the applicant with a request to the applicant to submit his response to the brief of Presenting Officer. On 23rd July, 2014, the applicant received a letter from the Deputy Commissioner (Vigilance) by way of a second reminder again calling upon the applicant to give his 6 OA No. 201/2021 comments on the Presenting Officer's brief. This reminder was sent more than two and half years after submission of enquiry report by the Enquiry Officer.
2.6 The applicant contends that the second Enquiry Officer held the enquiry at Navi Mumbai whereas the applicant is the resident of Goa. He does not have any arrangement of lodging and boarding at Navi Mumbai and has to spend from his own pocket on travel and other lodging and boarding expenses. He was not intimated about the date of enquiry in advance. The second Enquiry Officer has observed on his report that the applicant did not remain present for inspection of Relied Upon Documents (RUD) on 06th September, 2016. The Enquiry Officer conveniently ignored the fact that the daily order sheet no. 3 permitting such inspection was forwarded to the applicant on 07th September, 2016 and received a couple of days thereafter i.e. after the date of inspection was over on 06th September, 2016.
2.7 He further contended that on 29th November, 2016, the Enquiry Officer recorded the statement of witness in 7 OA No. 201/2021 the manner convenient to him. The second Enquiry Officer has also not fixed any date for the cross examination of the witness by the applicant. He further contended that the sole witness who was examined is not the author of any of the 19 documents which were relied upon in support of the charge levelled against the applicant. In fact, none of the 19 documents have been marked and taken on record of the enquiry nor any of the 19 documents have been proved by any witness or the author of the said documents in the enquiry.
2.8 The Enquiry Officer did not provide the opportunity to the applicant in terms of Rule 14(17) of the CCS CCA Rules which is a mandatory requirement. The report of the Enquiry Officer smacks of non-application of mind in as much as he simply reproduced the entire evidence of the sole witness. Principles of natural justice have been violated. It is further alleged that the second Enquiry Officer submitted his report on 14th March, 2017 and the copy of the same was forwarded by the Central Board of Excise and Customs under covering letter dated 20th March, 2018 i.e. after more than a year. He has sought 8 OA No. 201/2021 explanation for the said delay. It is further averred that the punishment meted out to the applicant is grossly disproportionate to the charge allegedly proved against him. He has, therefore, sought following reliefs:-
"8.(a) That this Hon'ble Tribunal be pleased to quash and set aside the impugned order dated 24th November, 2020 (Annexure A-1);
(b) that this Hon'ble Tribunal be pleased to hold and declare that the very issue of the charge sheet dated 23rd July, 2009 is barred by the 4 year Rule as contained in Rule 9 of the CCS Pension Rules and on that ground itself the charge sheet was unsustainable and could not have been proceeded with by the department and consequently hold that the impugned penalty order dated 24th November, 2020 is also required to be held to be unsustainable in law and required to be set aside;
(c) that this Hon'ble Tribunal in pursuance of prayer clauses (a) and (b) above direct the Respondents to restore the monthly pension of the Applicant and pay the same with periodical revisions as allowed and pay the same from the month of December, 2020 along with necessary arrears and interest at the rate of 18% per annum on the said arrears from the due date till actual payment;
(d) Such other and further order or orders be passed as the facts and circumstances of the case may require;
(e) That costs of this Original Application be provided for."
3. Respondents filed their reply. They contend that the case relates to the fraudulent claim of export benefits under DEPB Scheme by certain merchant exporters worth 9 OA No. 201/2021 Rs. 8.32 crores of which an amount of Rs. 1.59 crores had been sanctioned when the fraud was detected. The fraudulent shipping bills were filed at JNCH, Raigad between December, 2004 and September, 2005 and rebate claims were filed between May, 2005 and March, 2006. Investigations showed that the said exports were on paper only. The applicant was working as Assistant Commissioner of Customs (Exports) at JNCH during the relevant period and handled 51 shipping bills of fraudulent exporters. The fraud had primarily occurred because of the tampering of the EDI system of the Custom House and entering fake documents. Investigation showed that there was manual amendment of EGM in the EDI system on the basis of fake documents viz., Mate Receipts and Bills of lading showing on paper the shipment of the goods concerned, resulted in said export fraud. User ID of the applicant was used for manual submission of 51 shipping bills. However, only 9 shipping bills filed in July, 2005 could be covered in the proceedings instituted against the applicant as consideration of others had become time barred at the time of issuance of charge memorandum. 10 OA No. 201/2021 Due to amendment of EGM in respect of 9 shipping bills using the User ID of the applicant, exporters had claimed DEPB credit amounting to Rs. 62,01,420/- and also rebate of Central Excise duty amounting to Rs. 57,39,258/-. Accordingly, Charge Memo No. 52/2009 dated 22nd July, 2009 for Major Penalty Proceedings was issued to the applicant.
3.1 The respondents further contend that the Enquiry Officer submitted enquiry report dated 14th November, 2012 holding the charges as proved. The Disciplinary Authority accepted the findings of the Enquiry Officer and the report of the Enquiry Officer was forwarded to the applicant for his representation. The applicant did not submit any representation on the Enquiry Officer's report. The Disciplinary Authority, therefore, approved the case for reference to UPSC. The case records were sent to UPSC which were returned by it vide letter dated 11th October, 2013 pointing out that the Presenting Officer's brief was not served on the applicant. The same was complied with by the Enquiry Officer, who vide letter dated 30th July, 2014 informed that Presenting Officer's brief had been duly 11 OA No. 201/2021 served on the applicant and the applicant had shown no inclination to submit any representation against Presenting Officer's brief. Enquiry Officer, therefore, alleged that requirement of submitting modified enquiry report was not warranted. Later on, the case records were submitted to the UPSC for obtaining its advice. The Commissioner however, returned the proposal again pointing out that no clear finding was recorded by the Enquiry Officer on each of the articles of charge in the enquiry report. The Enquiry Officer has also not stated whether the articles of charge against the applicant are proved or otherwise. 3.2 In view of this deficiency, competent authority found it appropriate to appoint a new Enquiry Officer for conducting the enquiry as the previous Enquiry Officer had retired on superannuation. Accordingly, a new Enquiry Officer was appointed on 17th March, 2015. Enquiry Officer submitted his report on 14th March, 2017 holding all the three Article of charges as proved. The copy of the enquiry report was forwarded to the applicant for his representation vide letter dated 20th March, 2018. The applicant did not submit any representation on the enquiry report. 12 OA No. 201/2021 3.3 The papers were again referred to UPSC through Single Window System which was returned by UPSC on 12th October, 2018, pointing out that the approval of the President under Rule 9 of CCS (Pension) Rules, 1972 to impose the penalty of pension cut on the CO and refer the case to the Commission for advice, is not available. The Disciplinary Authority granted approval on 25th February, 2019 under Rule 9 of CCS (Pension) Rules, 1972. The case records were submitted to UPSC on 10th April, 2019. The Commission vide its order dated 21st January, 2020 advised for the imposition of penalty of withholding of 100% of the monthly pension on permanent basis and withholding 100% of gratuity due to him on permanent basis. The UPSC advise was forwarded to the applicant vide Memorandum dated 28th January, 2020 for submitting his representation. The applicant submitted his representation dated 03rd March, 2020. The Disciplinary Authority rejected the representation. Accordingly, the President in exercise of powers vested under Rule 9 of CCS (Pension) Rules, 1972, imposed the penalty of "Withholding of 100% of the 13 OA No. 201/2021 monthly pension on a permanent basis and withholding of 100% of the gratuity due to him on a permanent basis." 3.4 Respondents contend that principles of natural justice have been followed. They contend that the chargesheet was served to the applicant on 23rd July, 2009 i.e. well within limitation and the copy of chargesheet was received by the applicant on 05th August, 2009. Therefore, the chargesheet was served within limitation. The Enquiry Officer fixed preliminary hearing on 05th August, 2016 and the same was communicated to the applicant vide letter dated 26th July, 2016. It was delivered to the applicant on 30th July, 2016. Thus, this shows that he received the letter on time. The applicant did not attend the preliminary hearing on 05th August, 2016 and, therefore, the next date was fixed on 23rd August, 2016 for providing another opportunity to the applicant to attend the hearing and the same was communicated to him on 05th August, 2016 and the same was also forwarded to the applicant under covering letter dated 16th August, 2016. The Enquiry Officer time and again provided opportunity to the applicant to attend the hearing but the applicant did not avail the said 14 OA No. 201/2021 opportunity. The inspection of documents was scheduled on 06th September, 2016. The daily order sheet no. 3 was forwarded to the applicant vide letter dated 26th August, 2016. It was delivered to the applicant on 29th August, 2016. The Presenting Officer informed the Enquiry officer that the applicant did not present himself for inspection of documents. Despite giving sufficient opportunities, the applicant did not appear in the enquiry proceedings. The enquiry conducted by the Enquiry Officer was just, fair and after observing principles of natural justice. Next date in the enquiry was fixed on 26th October, 2016 vide letter dated 13th October, 2016 and the said letter was received by the applicant on 17th October, 2016. The applicant was asked to tender his defense statement on or before 09th November, 2016. This letter was issued on 29th November, 2016. The letter dated 29th November, 2016 was received by the applicant on 03rd December, 2016 but he did not submit any defense statement nor did he seek more time to submit his defense statement. The punishment is not disproportionate to the gravity of the offence. They, therefore, prayed for dismissal of the OA. 15 OA No. 201/2021
4. The applicant filed rejoinder. No new point is raised in the rejoinder.
5. Similarly, reply to rejoinder has been filed. No new point is raised in that reply to rejoinder also.
6. We have heard learned counsel for the applicant and learned counsel for the respondents.
7. Learned counsel for the applicant submitted that the Inquiry Officer (IO) submitted the report on 14th January, 2012. Copy of this report was forwarded to the applicant vide letter dated 04th August, 2012. Surprisingly, on 11th November, 2013, copy of brief of the Presenting Officer (PO) was served on the applicant requesting him to give his representation. He submitted that was the Inquiry officer submitted his report there was no question of serving the brief of the PO on the applicant. He submitted that the report of the IO was forwarded to the UPSC for its advice. UPSC pointed out that the Inquiry Officer had not given any finding on the guilt of the applicant. He submitted that on receipt of communication of the UPSC, the disciplinary authority remanded the inquiry to the Inquiry Officer and 16 OA No. 201/2021 appointed another Inquiry Officer. The disciplinary authority did not set aside the report of the IO and remanded the inquiry to a new Inquiry Officer. This action of the disciplinary authority is illegal.
8. Learned counsel further submitted that the second Inquiry Officer requested statement of defence but did not get proved any document from the said witness. Therefore, without there being any proof, the Inquiry Officer has reached a conclusion of guilt of the applicant. Contents of the documents have to be proved before the same can be read in the inquiry for recording a finding of guilt against the charged officer. This procedure has not been followed. Even the witness did not say anything as to how the applicant deviated from the procedure. The witness has not proved as to what consequences had entailed on account of non-following the prescribed procedure. Those 9 Shipping Bills have not been proved by the witness. Their contents are not proved and, therefore, it cannot be said that the guilt of the applicant has been proved even on the principles of preponderance of probability. 17 OA No. 201/2021
9. Learned counsel for the respondents submitted that the Inquiry Officer followed all the principles of natural justice. The Inquiry Officer gave maximum chances to cross-examine the witness but the applicant did not remain present during the inquiry. He submitted that the applicant has deviated from the procedure which is evident from the procedure prescribed in Standing Order no. 52/2004 and the witness has properly explained the same. He submitted that the disciplinary authority has remanded the matter to the Inquiry Officer. This itself amounts to setting aside the report of the inquiry. He submits that moreover, the question of setting aside the report of the inquiry of the first Inquiry Officer has no relevance because the Inquiry Officer had not recorded any finding on the guilt of the applicant. He submitted that the documents were tendered in evidence and, therefore, the Inquiry Officer was perfectly justified in placing reliance on those documents.
10. I have given thoughtful consideration to the submissions made by the learned counsels for their respective parties.
18 OA No. 201/2021
11. Charge against the applicant is that he has not followed the Standing Order No.52/2004 dated 31 st December, 2004 issued by the office of Commissioner of Customs (Exports), JNCH, Nhava Sheva which prescribes the procedure to be followed for amending EGM and failed to carry out the stipulated mandatory verifications before carrying out the amendments in the EGM through EDI System, presumably for monetary consideration. Second charge is that the applicant had fraudulently facilitated inserting (non-existing exports) 9 Shipping bills in the EGM (Export General Manifest), through his EDI login ID, wherein no physical exports had ever taken place. These 9 shipping bills were filed under DEPB scheme and undue DEPB credit had been availed by the fraudsters against exports fraudulently shown to have been effected, thus causing loss to the tune of Rs. 62,01,420/- to the Government Ex-chequer.
12. Third charge is that he facilitated the fraudulent claim of rebate of Central Excise Duty against non-existing exports under 9 S/Bills out of which an amount of Rs. 57,39,258/- was already sanctioned towards claim under 6 19 OA No. 201/2021 of the said 9 S/Bills, thus causing loss to the Government revenue. In order to prove these charges, the respondents examined only one witness by the name of Shri Subal Sai, Assistant Commissioner (Retired). The Inquiry Officer has examined only one witness i.e. Shri Subal Sai. Inquiry Officer has quoted the examination in chief of Shri Subal Sai in his report as under:-
"1. Prosecution witness Shri Subal Sai attended the hearing. The examination in chief was conducted by the P.O. The details were recorded by the I.O in the daily order sheet in a narrative form by the I.O and are reproduced hereunder:-
"The witness in the aforesaid matter presented himself on the request of the Inquiry Officer. He introduced himself as Shri Subal Sai, Assistant Commissioner (Retd.), and stated that he superannuated on 28/02/2015. On being asked during which period was he working at circle IV JNCH he stated that he was working as Superintendent, CIU, JNCH during circa March to Dec 2009. He was further asked whether he is aware of the above mentioned disciplinary proceeding. He replied in the affirmative.
The Presenting officer then proceeded for the examination in chief. He requested the witness to briefly state the facts of the case. Shri Subal Sal stated that the matter relates to fraudulent claim of rebate by certain unscrupulous exporters by falsifying details in the shipping bills. He further stated that there was no actual export but export was only on paper He stated that it was possible due to manual amendment of EGM subsequent to its filing on EDI. The EP copies of Shipping bills generated by the system by faking exports as above were thereafter used by the parties for DEPB licenses from DGFT & filing rebate claims with Central Excise authorities at Raigad. The export fraud in this case had primarily 20 OA No. 201/2021 occured because of the tampering of the EDI system of the Customs house & entering fake documents.
On being asked how the EGM could be amended & Fake Shipping Bill be generated, he stated that Shipping Bill were added to the EGMS by using the EGM amendment menu under S.O. No. 52/2004. This should be done only after proper verification but the charged officer did not follow proper procedure & hence this resulted in the fraudulent exports.
On being asked what is the proper procedure under S.O. 52/2004 he stated that the designated Assistant Commissioner should have prepared separate file in each case, checked the mate receipt and verify the manual Submission of such EGM. A record should have been kept by the export department in a register maintaining, inter alia, following details Sr. No. S/Bills/date, CHA No, F. No., Error to be removed and remarks. The charged officer did not verify the hard copies of EGMs before adding the Shipping Bills manually and he further did not open a separate file in each case and check the genuineness of mate receipt.
The Presenting Officer then submitted that the loss to revenue could have been prevented had the charged officer followed the proper procedure. He is therefore guilty of the article of charges mentioned at Sr. No. I, II and III in Annexure-l to the memorandum No. 52/2009 dated. 22-07-2009.
The Presenting Officer had nothing further to add. The Charged Officer has not presented himself to cross-examine the witness. "
13. This is the only oral evidence recorded by the Inquiry Officer.
14. From this evidence, it is clear that no document has been exhibited nor proved during the examination of this witness. It is settled law that merely tendering document is 21 OA No. 201/2021 not enough. Those documents have to be proved. Not only the documents have to be proved, their contents also have to be proved. During the examination of this witness, not a single document has been proved nor their contents have been proved. The evidence is totally vague. The charge against the applicant is that the applicant did not follow proper procedure for amending EGM. He inserted fraudulently non-existing shipping bills under DEPB scheme. No physical exports had taken place. Undue credits had been availed by fraudsters and loss was caused to the tune of Rs. 62,01,420/-. This witness has not spoken anything about fraudulent insertion of 9 shipping bills through his EDI login ID. He has not explained as to how undue credits have been availed by fraudsters. His examination in chief is nothing but the narration of the charge. This witness has also not stated as to how the loss of Rs. 62,01,420/- was quantified by the respondents.
15. In the case of Priyadarshani versus Punjab National Bank in W.P.(C) 14953/2023, Delhi High Court decided on 25th November, 2024, it has been held as under:- 22 OA No. 201/2021
"14. ......The Supreme Court has time and again held that where no oral evidence is led to prove the documents relied upon by the prosecution, documents cannot be taken into consideration to conclude that the charges are proved against the Charged Officer. I may, at this stage, allude to the judgment of the Supreme Court in Roop Singh Negi (supra), relevant paragraphs of which are as follows:-
"14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
xxx xxx xxx
17. In Moni Shankar v. Union of India [(2008) 3 SCC 484 : (2008) 1 SCC (L&S) 819] this Court held: (SCC p. 492, para 17) "17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.""23 OA No. 201/2021
15. Reiterating the principle, the Supreme Court in Saroj Kumar Sinha (supra) held as under:-
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of 24 OA No. 201/2021 rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969) "... Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.""
16. Nothing has been brought on record to show that the applicant has admitted all these documents. When documents are not admitted even if the inquiry is ex parte, the respondents are duty bound to adduce evidence to prove the contents of the document. The Inquiry Officer has relied on the investigation made by the respondents. On the basis of this evidence and the documents which are not proved, the Inquiry Officer has held the applicant guilty. The Inquiry Officer has held thus:-
"D. From the evidences on record, I observe the following:-
(i) From the printouts of "Movement for given S/B", I find that in all the 9 Shipping Bills (which are part of the instant inquiry proceedings), under the menu "HIST", the "CUSTOM OFFICER" who has used his log in ID is mentioned as "DSILVAEM" Asst. Commissioner of Customs, EDI Section, JNCH vide his letter F.No.EDI-80/2008 JNCH dt.20.01.09 has reported that the name of the officer for user "DSILVAEM" is E.M.DSILVA. Hence, there is no doubt that the C.O, Sh.E.M.DSILVA, has used his user id alongwith his confidential/secret password to allow the amendment of 25 OA No. 201/2021 EGM in the EDI system in respect of the 9 S/Bills during July 2005.
(ii) On going through the Standing Order No.52/2004 dated 31.12.2004, it is seen that the manual submission of EGM in the EDI system could be facilitated with the use of option 'EGM Amendment' avallable to AC (Export) in the menu 'Sea EGM Amendment It further states that the designated Assistant Commissioner of Customs (Export) shall, for the purpose of any of the amendments and before submitting EGM where EGM errors occur, prepare a separate file in each case, check the mate receipt and verify manual submission of such EGM. A record of such amendments shall be kept by the Export Department in a register mentioning Inter-alia the following details Sr. No., S/B/ No./Date; CHA No., F. No., error to be removed, remarks.
Therefore in terms of the said Standing Order, the C.O before using the Sea EGM Amendment menu should have prepared separate file in each case, checked the mate receipt and verified the manual submission of such EGM. Further, record of amendments should have been kept in a register in the Export Department. The Asst. Commissioner of Customs, Punjab Conware, JNCH vide his letter F.No.S/6-Gen-267/2008 P.Con dt.12.03.09 has reported that there is no entry of these Shipping Bills in the registers maintained at his office and that no file was opened for EGM Error/EP copy. Thus, I find that as no file was opened by the C.O, the question of any subordinate officer proposing or any senior officer approving the amendments does not arise.
(iii) Further, the S.O. clearly mentions about verification of manual submission of EGM by the designated Asst. Commissioner for the purpose of any amendment of EGM. However, the C.O. has not verified the existence of the Shipping Bills in question from the hard copy of the EGM, which is manually submitted/ filed by the Shipping Agents.
(iv) Investigations conducted in the matter revealed that due to the amendment of EGM in respect of 9 S/Bills (against which no exports had been effected), there has been loss of revenue to the Government in as much as the fraudulent exporters claimed DEPB credit amounting to Rs. 62,01,420/- and the fraudsters also claimed rebate of Central Excise Duty against these 9 S/Bills out of which an amount of Rs. 57,39,258/- of rebate had already been sanctioned (against 6 S/Bills appearing in the Table at Sr. No. 1,2,4,6,7 and 9 of para 9 of the Statement of imputations of misconduct or misbehaviour)." 26 OA No. 201/2021
17. Thus, this witness has stated that in terms of the Standing Order, the C.O before using the said EGM Amendment menu should have prepared separate file in each case, checked the mate receipt and verified the manual submission of such EGM. Record of amendments should have been kept in a register in the Export Department. He has further stated that the Assistant Commissioner of Customs, Punjab Conware, JNCH vide his letter dated 12th March, 2009 has reported that there is no entry of the Shipping Bills in the registers maintained in his office and that no file was opened for EGM Error/EP copy.
18. On the basis of this evidence, the Inquiry Officer has come to the conclusion that the applicant has not followed this procedure. On what basis these observations are made is not discernible from the report of the Inquiry Officer. Inquiry Officer has placed reliance on the letter dated 12th March, 2009 that there is no entry of the shipping bills in the registers maintained at his office and no file was opened for EGM Error / EP copy. He held that as no file was opened by the C.O, the question of any subordinate 27 OA No. 201/2021 officer proposing or any senior officer approving the amendments does not arise. As held in the case of Roop Singh Negi v. Punjab National Bank and Others, (2009) 2 SCC 570, this letter dated 12th March, 2009 has not been proved by any witness nor it is exhibited by any witness and, therefore, the Inquiry Officer was not right in placing reliance on this letter. In para (iv) (supra), the Inquiry Officer has observed that investigations conducted in the matter revealed that due to the amendment of EGM in respect of 9 S/Bills, there has been loss of revenue to the Government in as much as the fraudulent exporters claimed DEPB credit amounting to Rs. 62,01,420/-.
19. As held in the case of Roop Singh Negi (supra), the evidence collected during investigation by the investigating officer by itself cannot be treated evidence in the disciplinary proceedings. If investigation is to be relied on, the officer who made investigation has to be examined. Moreover, the investigation report has to be made available to the delinquent. The list of witnesses does not show that the investigation report was a part of RUD. From the report of the Inquiry Officer, it is not clear as to how the loss is 28 OA No. 201/2021 quantified at Rs. 62,01,420/-. The Inquiry Officer has held that this deliberate act of the C.O. has led to loss of revenue for the government as the investigation conducted in the matter has revealed that the fraudulent exporters claimed DEPB credit amounting to Rs. 62,01,420/- in respect of 9 Shipping Bills. Besides the fraudsters also claim the rebate of Central Excise Duty against these 9 Shipping Bills out of which an amount of Rs. 57,39,258/- of rebate had already been sanctioned. These observations are without any evidence. These 9 Shipping Bills have not been proved by the respondents during the inquiry. The respondents have also not led evidence to show that the fraudsters had claimed rebate of Central Excise Duty against these 9 Shipping Bills. Thus, neither deviation from the procedure is proved nor loss of Rs. 62,01,420/- nor claim of fraudsters to the tune of Rs. 57,39,258/- is proved.
20. The fall out of above discussion is that the respondents have not adduced any evidence in support of the charge. It is settled law that the findings are perverse when they are not based on any evidence. As indicated 29 OA No. 201/2021 earlier, the findings of the Inquiry Officer are perverse as they are without any evidence.
21. Moreover, there are two inquiry reports. The respondents have placed on record the correspondence in regard to this inquiry. It does not show that the report of the inquiry of earlier first Inquiry Officer has been set aside by the disciplinary authority. Without setting aside the report of the first Inquiry Officer, there cannot be scope for second inquiry. In these circumstances, it cannot be said that the respondents succeeded in proving that the applicant did not follow the procedure for amendment in EGM which caused loss of Rs. 62,01,420/- and it facilitated the fraudsters to claim rebate of Rs. 57,39,258/-. It is settled law that in judicial review, the Tribunal should be slow in disturbing the findings of the Inquiry Officer. The findings of the Inquiry Officer can be interfered with only if they are without any evidence, the inadmissible evidence has been considered or the evidence that ought to have been considered has been ignored and the findings are perverse. In the case at hand, the Inquiry 30 OA No. 201/2021 Officer has recorded the findings without there being any evidence.
22. Learned counsel for the respondents submitted that the inquiry be remanded to the Inquiry Officer for holding proper inquiry.
23. It is settled law that fresh inquiry has to be conducted from the stage error has occurred. In the case at hand, error has occurred at the stage of recording the evidence. We would have thought of remanding the inquiry. But the chargesheet shows that in the list of witnesses only the name of Shri Subal Sai has been listed. And from his evidences it appears that he has no personal knowledge of the disputed transactions. Learned counsel for the applicant submitted that the applicant has been suffering since the year 2006. He submitted that when this application was filed in the year 2021, the age of the applicant was 74 years. Now he must be 78 years of age. It would be humanly impossible for him to face the inquiry. We find substance in his contention. In these circumstances, we do not find it appropriate to remand the 31 OA No. 201/2021 inquiry. Hence, the application is allowed. The order dated 24th November, 2020 is set aside. All the pensionary benefits be released forthwith.
24. Pending MAs, if any, stand closed. No costs.
(Santosh Mehra) (Justice M.G.Sewlikar) Member (A) Member (J) 'nk' Digitally signed by Nicky Kumari DN: C=IN, O=Personal, OID.2.5.4.65= 5701472963214eacaf7214eb1c705990, Nicky Phone= 319c15ca9eb1feefdf068e6ccd39ee29568 95f6f91a3b405297e23829af5a475, PostalCode=823002, S=Bihar, SERIALNUMBER= 78a0e5fc01b6b3d12eabec40e7f8c4bf36 Kumari 6c1f4f6f5bd93fc66bbdd397444faa, CN= Nicky Kumari Reason: I am the author of this document Location:
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