Central Administrative Tribunal - Bangalore
T M Gopinath vs D/O Revenue on 27 April, 2023
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OA.No.170/00076/2019/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00076/2019
ORDER RESERVED ON 13.04.2023
DATE OF ORDER: 27.04.2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
T.M. Gopinath,
S/o Late T.M. Madaiah,
Aged about 51 years,
Occupation - Appraiser of Customs,
Mangalore Customs Commissionerate,
Panambur, Mangalore 575 010 .... Applicant
(By Smt. G. Manjula, Advocate)
Vs.
1. The Union of India,
Represented by the Secretary,
Ministry of Finance,
Government of India,
Department of Revenue,
Central Board of Excise & Customs,
6th Floor, Hudco Vishala Building,
Bhikaji Cama Place, R.K. Puram,
New Delhi - 66.
2. The Chairman,
Central Board of Excise of Customs,
North Block, New Delhi 110 001
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OA.No.170/00076/2019/CAT/BANGALORE
3. The Chief Commissioner,
Customs, Bangalore Zone,
Bangalore
4. The Commissioner,
Central Excise,
II Commissionerate,
Central Revenue Building,
Queens Road, Bangalore 560 001
5. The Commissioner,
Customs, P.B. No. 5400,
Central Revenue Building,
Queens Road, Bangalore 560 001 ...Respondents
(By Shri K. Gajendra Vasu, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"The applicant respectfully prays that this Hon'ble Tribunal may be pleased to call for the records pertaining to Order No. 27/2017 vide F.No. C- 16012/17/2012-Ad.V/9746-50 dated 12-12-2017 at Annexure-A1 of revisional authority imposing a penalty of reduction to lower stage in the time scale of pay by one stage for a period of two years and set aside the same after declaring the action of the respondents in imposing a penalty of reduction to lower stage in the time scale of pay by one stage for a period of two years 3 OA.No.170/00076/2019/CAT/BANGALORE on the applicant as arbitrary, illegal and unjust and consequently direct the respondents to treat the entire period from the date of imposition of compulsory retirement i.e., 31-03-2011 to 27-12-2017 to the date of reinstatement 28-12-2017 as duty for all purposes such as pay, seniority and promotion and restore the pay and seniority of the applicant and pay him all consequential benefits such as all arrears of pay and grant the applicant promotion as per his seniority and pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the interest of justice."
2. The facts in brief as narrated by the applicant are that, he was issued with major penalty charge memo vide Charge Memorandum No. C-No. II/10A/03/2005 Cus. A dated 04.05.2006 while he was working as Appraiser of Customs at Bangalore. The applicant denied the charges and requested the Disciplinary Authority to drop the charges levelled against him. The Disciplinary Authority decided to conduct a regular inquiry into the charges levelled against the applicant. The Inquiry Officer conducted and concluded the inquiry and submitted a report to the Disciplinary Authority wherein it was held that the charges levelled against the applicant are proved. It is averred by the applicant that the copy of the Inquiry Report dated 13.09.2007 was given to him only during 2009. A detailed representation 4 OA.No.170/00076/2019/CAT/BANGALORE dated 27.04.2009 was submitted by the applicant in pursuance to the said Inquiry Report bringing to the notice of the Disciplinary Authority with regard to the deficiencies, defects and infirmities in the Charge Memo/Inquiry Report. On consideration of the representation, the Disciplinary Authority remitted the matter back to the Inquiry Officer for submitting a fresh Inquiry Report duly giving an opportunity to the applicant to submit his defense note.
3. The applicant submits that the adjudication proceedings against show cause notice dated 29.08.2003 which culminated in Order In Original No. 30/2004 dated 31.08.2004, confirmed by the CESTAT, in its final order dated 15.09.2006 relating to the proceedings under the Customs Act, 1962 initiated on the same issues involved herein, decided in favour of the applicant though brought to the notice of the Inquiry Officer, the Inquiry Officer submitted his report to the Disciplinary Authority afresh on 15.09.2009 holding the applicant as guilty. The applicant made a detailed representation on 02.03.2011 before the Disciplinary Authority requesting the said authority to drop all the charges levelled against him. The Disciplinary Authority by 5 OA.No.170/00076/2019/CAT/BANGALORE order dated 31.03.2011 imposed the punishment of compulsory retirement on the applicant. Being aggrieved, the applicant preferred an appeal before the Appellate Authority which came to be dismissed confirming the penalty imposed on the applicant. Being aggrieved, the applicant preferred Revision Petition before the Revisional Authority.
4. The Revisional Authority modified the order of penalty as reduction to a lower stage in the time scale of pay by one stage for a period of two years with further directions that the applicant will not earn increments of pay during the period of reduction and, on the expiry of this period, the reduction will not have the effect of postponing the future increments of his pay. Being aggrieved, the applicant is before this Tribunal.
5. Learned counsel Smt. G. Manjula representing the applicant argued that the Disciplinary Authority and the Appellate Authority mechanically adopted the reasoning of the Inquiry Officer and imposed/confirmed the penalty of compulsory retirement. The inquiry conducted was not in conformity with Rule 14 of Central Civil Services (Classification, 6 OA.No.170/00076/2019/CAT/BANGALORE Control and Appeal) Rules, 1965. Placing reliance on the order of CAT, Principal Bench in OA No. 4150/2013 in the case of Mohammad Naushad vs Union of India & Anr. (DD 24.01.2017), learned counsel submitted that the said Mohammad Naushad was also charged along with the applicant on the same charges. The said Mohammad Naushad being exonerated from all charges, the applicant is entitled to similar treatment. Though this aspect was brought to the notice of the Revisional Authority, it was held by the Revisional Authority that the said order does not automatically apply to him. Accordingly, the penalty of compulsory retirement imposed on the petitioner was modified without exonerating him from the charges.
6. Learned counsel submitted that the applicant herein was issued with the charge memo similar to that of Mohammad Naushad. In the circumstances, similar treatment ought to have been given to the applicant by the Revisional Authority. Despite the proceedings initiated by issuing show cause notice to the applicant under the Customs Act, they were held to be invalid by the hierarchy of authorities, including the CESTAT, imposition of penalty of compulsory retirement further modified by the 7 OA.No.170/00076/2019/CAT/BANGALORE Revisional Authority to reduction to a lower stage in time scale of pay, being in contradiction of the order passed by the Principal Bench in the case of Mohammad Naushad, supra, the same requires to be set aside.
7. Learned counsel Shri K. Gajendra Vasu appearing for the respondents justifying the impugned order of the Revisional Authority submitted that the order imposing major penalty of compulsory retirement has already been modified to "reduction to a lower stage in the time scale of pay by one stage for a period of two years with further directions that he will not earn increments of pay during the period of reduction and, on the expiry of this period, the reduction will not have the effect of postponing the future increments of his pay". The confessional statements under Section 108 of the Customs Act, 1962 are admissible evidence, and hence, the same has been relied upon by the authorities.
8. Learned counsel further argued that the order passed in Mohammad Naushad case by the Principal Bench was an order passed in personam - applicable to the applicant therein alone and the same cannot be made applicable to the applicant herein. 8
OA.No.170/00076/2019/CAT/BANGALORE The representation of the applicant was duly considered by the Revisional Authority having regard to the advice of UPSC and the same does not suffer from any irregularity or illegality. Hence, no interference is warranted by this Tribunal. Accordingly, learned counsel sought for dismissal of the OA.
9. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
10. Charge memorandum dated 04.05.2006 issued to the applicant contains the following charges:
"(i) The bill of entry was presented for examination on 8-4-2003. Shri Dharan Kumar, Inspector carried out the examination in the presence of Shri Gopinath A.O. During the inspection, Shri T.M. Gopinath, Appraiser came to know that the tiles were of dimension 500x500x10mm and 600x600x10 mm which was different from the sizes declared in the invoice/packing list. Having come to know of the discrepancy, he should have taken the documents to his custody. Instead, he allowed the inspector to return the same to the agent/importer without any objection. Therefore, the directions given in Appraising Manual 15 (a), page 9 Vol. 3 were not followed by him and this facilitated the substitution of documents by the importer. Thus, Shri T.M. Gopninath, Appraiser failed to 9 OA.No.170/00076/2019/CAT/BANGALORE record the discrepancy on the bill of entry on 8-4-2003 after examination.
(ii) When the bill of entry was presented on 9-4-2003 he failed to notice that the invoice and packing list were substituted and failed to record his observations in detail in the examination report, but gave a stereotyped examination report. This grave error committed by him has lead to wrong assessment.
(iii) Though examination was carried out on 8-4-2003, the examination report was given on 9-4-2003, which again is a grave lapse on his part.
Thus, Shri T.M. Gopinath, Appraiser failed in proper discharge of his duties and failed to maintain absolute integrity and devotion to duty in terms of Rule 3 (1) (i) and 3 (1) (ii) of CCS (Conduct) Rules, 1964. He also acted in a manner unbecoming of a government servant and thereby contravened the provisions of Rue 3 (1) (iii). Therefore, he is liable for action under CCS (CCA) Rules, 1965."
11. The conclusion arrived at by the Inquiry Officer are as under:
"14. CONCLUSION In view of the above position, I find that the charges against Shri T.M. Gopinath, Appraiser, that,
(i) The bill of entry was presented for examination on 8-4-2003. Shri Dharan Kumar, Inspector carried out the examination in the presence of Shri Gopinath A.O. 10 OA.No.170/00076/2019/CAT/BANGALORE During the inspection, Shri T.M. Gopinath, appraiser came to know that the tiles were of dimension 500x500x10mm and 600x600x10 mm which was different form the sizes declared in the invoice/packing list. Having come to know of the discrepancy, he should have taken the documents to his custody. Instead, he allowed the inspector to return the same to the agent/importer without any objection. Therefore, the direction given in Appraising Manual 15
(a), page 9 Vol. 3 were not followed by him and this facilitated the substitution of documents by the importer.
Thus, Shri T.M. Gopninath, Appraiser failed to record the discrepancy on the bill of entry on 8-4-2003 after examination.
(ii) When the bill of entry was presented on 9- 4-2003 he failed to notice that the invoice and packing list were substituted and failed to record his observations in detail in the examination report, but gave a stereotyped examination report. This grave error committed by him has lead to wrong assessment.
(iii) Though examination was carried out on 8-4- 2003, the examination report was given on 9-4-2003, which again is a grave lapse on his part.
STAND PROVED"
12. The Disciplinary Authority has concurred with the conclusion of the Inquiry Officer and reiterated all the findings viz., that all the allegations in the article of charge framed against the CO, 'stand proved'.
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13. The main Article No. 1 of the Charge Memorandum issued to Mohammad Naushad vide Charge Memorandum dated 04.05.2006 reads thus:
"Article I Shri M. Naushad, while working as Appraiser at ICD, Bangalore, was in charge of import assessment. An import General Menifest (IGM) No.2482 dated 04.04.03 was filed in ICD showing the importer as M/s G.M. Exports, No.1686, Marwari Galli, Ilkal-587125 and description of the goods as "Vitrified tiles". A request to change the description of the goods to "Ceramic Tiles" in the IGM was made by the importer on 4.4.03 and Bill of Entry No.2416 was filed on
5.4.03 indicating the goods as "Ceramic Tiles". Shri M. Naushad, appraiser who was in charge of assessment of the B/E No.2416 dt. 5.4.03 failed to take on record the request for IGM amendments on a separate file and obtain permission of the senior officers to permit the amendment in the IGM as was the normal practice. Further when the importer requested on 7.4.03 to change the description of the goods in the Bill of Entry from "Ceramic Tiles" to "Vitrified Tiles" he failed to refer the matter to noting section to have the description reconciled so that both would read as "Vitrified Ceramic Tiles" as prescribed in para 14(24) on page 30 of the Appraising Manual (Volume 1) issued by Calcutta Customs House.
Thus Shri M. Naushad, Appraiser failed in proper discharge of his duties and failed to maintain absolute integrity and devotion to duty in terms of Rule 3(1) (i) and 12 OA.No.170/00076/2019/CAT/BANGALORE 3(1)(ii) of CCS (Conduct) Rules, 1964. He also acted in a manner unbecoming of a government servant and thereby contravened the provisions of Rule 3(1)(iii) ibid. Therefore he is liable for action under CCS (CCA) Rules, 1965." The other charges i.e., Articles of Charges 2 to 4 are also relating to and consequential to the same issue.
14. Punishment of compulsory retirement imposed on the said Mohammad Naushad, confirmed by the Appellate Authority, was challenged before the Principal Bench. Having considered the decisions in R.D. Gupta vs Union of India and Ors. in OA No. 2862/1997 dated 07.08.2000 (CAT, Principal Bench), as upheld by the Hon'ble High Court of Delhi and the Hon'ble Apex Court. Rajeev Sood vs Union of India & Ors. in OA No. 539- HR-2007 dated 13.02.2009 (CAT, Chandigarh Bench) and J.P. Singh vs Union of India & Ors in OA No. 1690/2007 dated 19.11.2008 (CAT, Principal Bench), as upheld by the Hon'ble High Court of Delhi vis-a-vis the relevant provisions of the Customs Act, 1962, OA No. 4150/2013 (Mohammad Naushad case) was allowed quashing the impugned orders therein and directing the respondents to reinstate the applicant therein into service within 60 days from the date of receipt of a copy of the 13 OA.No.170/00076/2019/CAT/BANGALORE said order, with all consequential benefits, however, rejecting any arrears of salary for the break period.
15. As could be seen from the material on record, Shri Mohammad Naushad was the co-accused with the applicant in the Charge Memo issued in respect of Bill of Entry No. 2416 dated 05.04.2003. Analysing the material on record, CESTAT had arrived at a conclusion that the penal action proposed against the officers viz., Shri Mohammad Naushad, Appraiser of Customs, Shri Amit Choudhary, Appraiser of Customs, Shri T.M. Gopinath, Appraiser of Customs, applicant herein, Shri Dharan Kumar, Inspector of Customs under Section 112 (a) of Customs Act, 1962 is not sustainable in law. In the facts and circumstances of the case, it was made clear that the question of initiating the departmental action against the said officers is a matter that should be considered separately by the proper authorities on the basis of a proper enquiry.
16. It is discernible from the order of CESTAT in Appeal No. 456-459/2005 (Final Order No. 1533-1536 of 2006, DD 15.09.2006) that the revenue being aggrieved with the Order-in- 14
OA.No.170/00076/2019/CAT/BANGALORE Original No. 30/2004 dated 31.08.2004 by which Customs Adjudication Commissioner had dropped the proceedings against three Appraisers and one Inspector of ICD, Bangalore, had approached the CESTAT inter alia seeking other reliefs. The three Appraisers and Inspector of ICD are viz., 1) Shri M. Naushad, 2) Shri Amit Choudhary, 3) Shri T.M. Gopinath, applicant herein 4) Shri Dharan Kumar. The aforesaid officers of the Customs department were charged in the show cause notice for having abetted in the offence of mis-declaration of the quantities of vitrified tiles imported under the impugned bills of entry. However, the Commissioner after summing up the records clearly noted that the Revenue has not produced any evidence of abetting under Section 112 (a) of the Customs Act, 1962. The Commissioner of Customs in his order dated 31.08.2004, while dropping the proceedings initiated against the applicant and others under the Customs Act, 1962, observed as under:
"210. However I hasten, to make it very clear here that the observations made above are only in respect of the charges proposed against the Customs Officers under the provisions of the Customs Act, 1962. The question of initiating departmental action against the officers is a matter that 15 OA.No.170/00076/2019/CAT/BANGALORE should be considered separately by the proper authorities on the basis of a proper enquiry. The observations made here in above, has nothing to do with the investigation and out come of such proceedings, because such action does not form part of these adjudication proceedings."
17. Having considered the said observation, Principal Bench, New Delhi in OA No. 4150/2013 has observed thus:
"13. In the present case, the Commissioner of Customs in his Order dated 31.08.2004, while dropping the proceedings initiated against the applicant under the Customs Act, 1962, observed as under:
"210. However I hasten to make it very clear here that the observations made above are only in respect of the charges proposed against the Customs Officers under the provisions of the Customs Act, 1962. The question of initiating departmental action against the officers is a matter that should be considered separately by the proper authorities on the basis of a proper enquiry. The observations made here in above, has nothing to do with the investigation and out come of such proceedings, because such action does not form part of these adjudication proceedings."
14. The learned counsel for the respondents, by drawing our attention to the aforesaid observation of the Commissioner of Customs read with Section 127 submits that the respondents are empowered to proceed against the applicant departmentally though the charges are the same. The said contention is unsustainable in view of the decisions in R.D.Gupta, Rajeev Sood and J.P.Singh (supra). The other contentions of the 16 OA.No.170/00076/2019/CAT/BANGALORE respondents, in the circumstances, and in the facts of the case, are unsustainable.
15. We have carefully gone through the entire report of the Inquiry Officer dated 13.09.2007. As rightly contended by the learned counsel for the applicant, and not disputed by the respondents counsel, not even a single witness was examined in the departmental inquiry and no document is marked and proved by any witness of the respondents. The inquiry officer, gave his findings basing on the list of documents enclosed to the chargesheet without there being marked before him. All the statements basing on which he gave his finding were admittedly the statements recorded before issuance of the chargesheet and before other authorities, such as, Directorate of Revenue Intelligence, etc., As a result, the applicant was deprived of cross-examining any witness and confronting with any document, pitted against him. The whole process of inquiry is clearly in violation of the principles of natural justice and also the CCS (CCA) Rules, 1965 and against to the settled principles of law. Accordingly, the inquiry report dated 30.09.2009 and the impugned orders passed in pursuance thereto are liable to be quashed on this ground also.
16. As rightly submitted by the learned counsel for the applicant, identical grounds, raised in the present OA were also raised in J. P. Singh (supra) and were accepted by this Tribunal.
17. There is no cavil with the principles of law enunciated by the Hon'ble Apex Court in the decisions on which the learned counsel for the respondents placed reliance. However, in none of the said cases the scope of inquiry under the provisions of Customs Act, 1962 vis-à- vis the departmental inquiry under the CCS (CCA) Rules, 1965 were considered. Similarly, none of those decisions supports the view that an employee can be imposed with a punishment in pursuance of an inquiry where 17 OA.No.170/00076/2019/CAT/BANGALORE no witnesses were examined and no opportunity of cross- examination was provided to the charged officer and where the statements recorded behind the back of the charged officer were considered. Hence, the said decisions have no relevance in the facts of the present case.
18. It is the settled principle of law that even after punishment imposed upon the employee is quashed by the Court or Tribunal, the payment of back wages still remains discretionary and an order can be passed keeping in view the circumstances of the case. [See: CMD Coal India Limited v. Anant Saha & Others, (2011) 5 SCC 142; State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584; and Commissioner of Police, Delhi v. Jai Bhagwan, (2011) 6 SCC 376].
19. In the circumstances and for the aforesaid reasons, the OA is allowed, and the impugned orders are quashed and the respondents are directed to reinstate the applicant into service within 60 days from the date of receipt of a copy of this order, with all consequential benefits. However, in the circumstances, the applicant is not entitled for any arrears of salary for the break period. No order as to costs."
18. Since the issue involved herein is identical to the subject matter considered and analysed by the CAT, Principal Bench in the aforesaid OA No. 4150/2013 and Shri Mohammad Naushad was the co-accused with the applicant, the Charge Memo issued in both the cases relates to and consequential to the same issue, the decision of Principal Bench is squarely applicable 18 OA.No.170/00076/2019/CAT/BANGALORE to the case on hand. On the ground of parity, the applicant is entitled to similar relief. Merely for the reason that the applicant herein was not a party in the said OA No. 4150/2013, no different treatment could be given. It is well settled principle that consistency and uniformity are the hallmark of judiciary. Judicial propriety and discipline demands the same. Denying equal treatment to the applicant, though his case is similar to that of Mohammad Naushad, is discriminatory, being violative of Articles 14 and 16 of the Constitution of India.
19. It is apt to refer to the settled legal principles enunciated by the Hon'ble Apex Court.
20. In E.P. Royappa v. State of T.N. (1974) 4 SCC 3, the Hon'ble Apex Court observed as under: (SCC p. 38, para 85) "85. ... From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 19 OA.No.170/00076/2019/CAT/BANGALORE
16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
21. In Maneka Gandhi v. Union of India (1978) 1 SCC 248 the Hon'ble Apex Court observed as under: (SCC pp. 283- 84, para 7) "7. ... Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. ... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence...."
22. In Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104, the Hon'ble Apex Court observed thus:
"xxxx Fair procedure is the soul of Article 21, reasonableness of the restriction is the essence of Article 19(5) and sweeping discretion degenerating into arbitrary discrimination is anathema for Article 14."
23. In the light of the aforesaid judgments, the view taken by the Revisional Authority is wholly perverse and cannot be upheld.
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24. For the reasons aforesaid, we pass the following :ORDER:
1) The order impugned dated 12.12.2017 issued by the Respondent No. 1 (Annexure-A1) communicated vide order of Respondent No. 5 dated 14.12.2017 is modified, exonerating the charges levelled against the applicant setting aside the penalty order.
2) The applicant is exonerated from the charges levelled against him vide Charge Memorandum dated 04.05.2006.
3) The applicant's reinstatement is approved with all consequential benefits. However, in the circumstances, the applicant is not entitled for any arrears of salary for the break period.
4) OA stands disposed of as indicated above.
5) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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