Central Administrative Tribunal - Bangalore
Abdul Azeeza vs Revenue on 22 January, 2024
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OA.No.458/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00458/2021
ORDER RESERVED ON:29.11.2023
DATE OF ORDER: 22.01.2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Abdul Azeez. A,
Aged about 49 years,
S/o Abdul Latif. M,
Superintendent of Central Tax,
F1, TCS Apartment, 13th Cross,
Ganaga Nagar, Bengaluru-560 024. ....Applicant
(By Advocate Shri Pawan Kumar represents Shri Saurabh R.K)
Vs.
1.Union of India
Through its Secretary,
Ministry of Finance,
Department of Revenue,
New Delhi-110 066.
2. The Chairman,
Central Board of Indirect Taxes & Customs,
Ministry of Finance,
Department of Revenue,
Central Secretariat, North Block,
New Delhi-110 001.
3. The Principal Chief Commissioner Central Tax,
Karnataka Zone, C.R. Building,
Queen's Road, Bengaluru-560 001.
4. The Commissioner of Central Tax,
Audit-II Commissionerate, Bengaluru
JSS Towers, 100 Feet Road,
Banashankari 3rd Stage,
Bengaluru -560 085. ....Respondents
(By Shri S. Sugumaran, Sr. Panel Counsel for Respondents)
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ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) Quash the order No.01/2018(Vig) dated 17.10.2018 in File No. C. No. IV/10A/03/2017-Audit II(Vig)1734/18, passed by the 4th respondent (Annexure-A9), vide which a penalty of "removal of service" as prescribed under Rule 11 (viii) of CCS (CCA) Rules 1965 had been imposed upon the applicant.
b) To quash the Order-in-Appeal No.01/2021(Vig), dated 15.04.2021, in File No. C. No. II/26/39/2018- Vig. PCC CT (BZU)/351, passed by the 3rd respondent (Annexure-A10), vide which the penalty imposed upon the applicant, has been modified from "removal of service" to "reduction in pay by 3 stages from the pay for a period of 3 years with immediate effect, in terms of Rule 11(vi) of CCS (CCA) Rules, with a further direction that the officer shall not earn increments of pay during the period of reduction and the reduction shall not have the effect of postponing his future increments of pay. The said penalty shall be a bar to the promotion of the Government servant during this period".
c) Issue such other appropriate writ, order or direction as this Tribunal deems fit to grant in the interest of equity and justice.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
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a) The applicant is currently working as Superintendent of Central Tax, Bengaluru Zone. The applicant was earlier posted as Inspector of Customs Air Cargo Complex, Bangalore.
b) The applicant was summoned in March 2016, before the Assistant Commissioner (Vigilance), Directorate General of Vigilance, Hyderabad Zonal Unit, Customs & Central Excise, Hyderabad, in relation to a preliminary inquiry. The applicant was shown a video footage, wherein some agent working in the offices of Air Cargo, returned the applicant some balance money. An allegation was posed to the applicant that the sum received was for performing his official duties. The applicant denied such allegations.
c) The Applicant was served with a Charge Memorandum under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on 19.7.2017 from the Office of the 4th Respondent. In the said Charge Memorandum, two Articles of Charge were levied against the Applicant. The two articles of Charge were as under:
ARTICLE - I
1. Shri Abdul Azeez, presently working as Superintendent of Central Tax, Audit - II Commissionerate, Bengaluru has worked as Inspector, Air Cargo Complex, Bengaluru, during the period from June, 2014 to August, 2015. While his official performing duties at Air Cargo Complex, Kempegowda International Airport, Bengaluru, and signing official documents, Shri Abdul Azeez, Superintendent (then Inspector of Customs, Air Cargo Complex, 4 OA.No.458/2021/CAT/Bangalore Bench Bengaluru), Audit II Commissionerate, Bengaluru appeared to have taken money 3 times from unknown persons, on 18.06.2015 as seen in the video footage.
2. The Video duration footage, recorded on 18.06.2015 at 14.55 Hrs of 5 minutes 24 seconds showed Shri Abdul Azeez, Superintendent of Central Tax (then Inspector of Customs, Air Cargo Complex, Bengaluru), Audit 0 II, Commissionerate, Bengaluru receiving money three times from different persons, while performing his official duties at Air Cargo Complex, Kempegowda, International Airport, Bengaluru and signing official documents.
ARTICLE-II
3.As seen from the above mentioned video footage, Shri Abdul Azeez, Superintendent of Central Tax (then Inspector of Customs, Air Cargo Complex, Bengaluru), Audit - II Commissionerate, Bengaluru while performing his official duties on 18.06.2015 at Air Cargo Complex, Kempegowda International Airport, Bengaluru, has allegedly handed over his official computer and allowed it to be operated by a private individual later identified as Shri Vinod Kumar, Executive of M/s. Nippon Express India Pvt. Ltd.
4. Thus, Shri Abdul Azeez, Superintendent of Central Tax (then Inspector of Customs, Air Cargo Complex, Bengaluru), Audit - II Commissionerate, Bengaluru failed to maintain absolute integrity and acted in a manner unbecoming of a government servant; failed to maintain high ethical standards and honesty and failed to perform 5 OA.No.458/2021/CAT/Bangalore Bench and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities, thereby violated the provision of clause (i), (iii), (vi), (xv), (xviii) and (xxi) of the sub rule 1 of 3 of the CCS(Conduct) Rules, 1964 and has rendered himself liable for action under Rule 14 of CCS(CCA) Rules, 1965.
d) The applicant filed his written reply to the Charge Memorandum and denied the two articles of charge. Mr. K. S. Venkatesh Murthy, Assistant Commissioner, Audit - II Commissionerate was appointed as the Inquiry Officer. The Inquiry Officer concluded his Inquiry and filed his Inquiry Report vide letter dated 30.05.2018. The Inquiry Officer after a thorough consideration of the contentions came to the conclusion that both the Articles of Charge against the Applicant are "not proved".
e) The Disciplinary Authority issued a Disagreement Note dated 06.07.2018 wherein the Disciplinary Authority gave his "tentative reasons for disagreement" and issued the same to the Applicant. The Applicant filed his reply to the Disagreement Note on 25.07.2018.
f) The Disciplinary Authority passed the Order-in Original No. 01/2018 (Vig) dated 17.10.2018. The 4th Respondent upheld his own notes of disagreement and held the Applicant guilty of both the Articles of Charge. He imposed a penalty of "Removal from Service" as prescribed under Rule 11(viii) of the CCS(CCA) Rules, 1965 for violation of clauses (i), (iii), (vi), (xv), (xviii) and (xxi) of the sub rule (1) of Rule 3 of the CCS (Conduct) Rules, 1964.
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g) Aggrieved by the order passed by the 4th Respondent, the Applicant preferred an appeal before the 3rd Respondent. After providing the Applicant with an opportunity of being heard, the 3rd Respondent passed the order bearing Order-In-Appeal No. 01/2021 (Vig) dated 15.04.2021, wherein, the 3rd Respondent found that no quid pro quo was established and that demand and acceptance of illegal gratification was also not established. Even though the findings were in favour of the Applicant, the 3rd Respondent still went on to hold the Applicant guilty of charges under sub-clause (i), (iii), (vi), (xv), (xviii) and (xxi) of Rule 3(1) of the CCS (Conduct) Rules, 1964. The 3rd Respondent reduced the quantum of penalty and imposed the penalty of "reduction in pay by three stages from the pay for a period of three years with immediate effect, in terms of Rule 11(vi) read with Rules 14 and 27 of the CCS(CCA) Rules, 1965". The 3rd Respondent further ordered that the Applicant shall not earn increments during the period of reduction and also ordered that the penalty under Rule 11 (vi) of the CCS (CCA) Rules, 1965 shall be a bar to the promotion of the Applicant during the penalty period of three years.
h) The Applicant submits that all the charges levied against the Applicant are solely reliant on one piece of evidence that is produced as Exhibit
- I. Both Respondent No. 3 and Respondent No. 4 have conveniently rejected the three other Exhibits - II, III and IV, as self-serving statements by biased individuals, even though the statements were introduced as evidence by the Disciplinary Authority and not by the 7 OA.No.458/2021/CAT/Bangalore Bench Applicant. Exhibit - I is the alleged DVD footage captured by an anonymous complainant.
i) The DVD footage was submitted by the anonymous complainant to DGoV, Hyderabad. The DGoV, Hyderabad conducted the preliminary investigation and referred the charges against the Applicant to the Disciplinary Authority. The DGoV, Hyderabad, later, in letter dated 29.01.2018, has clearly stated as follows:
"This office is not in possession of the original video or the device used for recording this video. During the course of investigation, this office had asked the complainant to submit the original recording media. In response, the complainant has stated that the recording was done by using cell phones and data was transferred to DVD which was submitted to this office. He did not produce any original recording media to this office." (emphasis supplied)
j) A bare reading of the letter dated 29.01.2018 clearly establishes that the preliminary investigating authority not only was not in possession of the original recording media but was also not in possession of the original video itself.
k) The officials from the Respondents' department were never in possession of the original video recording or recording device and have specifically taken the stance that the manipulated video recording provided to them was photoshopped and inauthentic. Therefore, at the very outset, the single-handed reliance of the Respondents on the video recording makes the entire charge against the Applicant completely 8 OA.No.458/2021/CAT/Bangalore Bench untenable and the entire Disciplinary Proceedings are liable to be quashed.
l) The 3rd Respondent considered the video footage as valid evidence for the following reasons:
i. The persons in the video have identified themselves. ii. None of the persons have expressed any doubts regarding the contents of the video footage during the recording of their statements.
iii. Neither the Applicant nor the two persons claimed that there was any cut/break in the video footage; that the video footages were different; or that the video footage was blurred or unclear. iv. The persons have confirmed the money transactions shown in the video footage.
v. The Applicant did not dispute that the money was exchanged. vi. Shri Munindra stated that the money was given for fetching coffee and snacks but did not dispute the money exchange.
m) The reasons stated by the 3rd respondent are completely misplaced and, in many places, contradictory. The conclusions arrived at by the 3rd respondent that the admissions of the applicant establish the authenticity of the video is wholly misplaced. The 3rd respondent, while arriving at the decision, has placed great reliance on "preponderance of 9 OA.No.458/2021/CAT/Bangalore Bench probability", however, he has failed to take into consideration the following aspects while weighing the probabilities.
i. The admissibility of electronic evidence without any certificate under Section 65B of the Indian Evidence Act, 1872. In this issue, the 3rd respondent held that admitted facts need not be proved and further held that since the DGoV, Hyderabad was not in possession, a certificate under 65B is not necessary. ii. The 3rd Respondent has gravely erred in coming to a conclusion that the statements of Shri. Munindra and Shri Ramesh are self serving statements. While coming to this conclusion the 3rd Respondent failed to appreciate that Shri. Munindra and Shri. Ramesh are the witness produced by the Disciplinary Authority. The Applicant did not call them for their statements. It is preposterous to voluntarily call for and record the statement of the witnesses and then dismiss them as self-serving and interested parties.
iii. The 3rd Respondent erred in holding that the Applicant is guilty of permitting a private individual to operate his office computer. The Applicant submits that video footage is said to be recorded from 14:55 on. 18.06.2015 and the video length is 5 minutes and 24 seconds. Therefore, the video is recorded in between 14:55 to 15:01. The private individual is alleged to have operated the system at 4:40 seconds into the video. However, a perusal of the List of Bills registered by the Applicant would show that he was 10 OA.No.458/2021/CAT/Bangalore Bench entering many bills till 14:58 and no bills were registered in between 14:59 and 15:01 If no bills were registered at the time of the operation of the office computer by the alleged private individual, it is clear that the statement of the Applicant that he was trying to restart a hung computer is true.
iv. The 3rd Respondent held that permitting the private individual to switch on the hung computer itself is a violation of the conduct rules. However, this is going beyond the scope of the charge memorandum. The specific allegation against the Applicant is that he permitted the private individual to operate the office computer. The word "operate" has a connotation that he permitted the private individual to "control the functioning" of the office computer. If the private individual only switched on a hung computer, it cannot be said to be operating the computer and any other allegation would be outside the scope of the charge memorandum.
v. There are four other Disciplinary Proceedings based on the same video. The video provided to the applicant is only in relation to the allegations against him. If there is footage relating to other personnel in the Air Customs Cargo building, then the footage against the applicant is definitely edited to remove the footage relating to the other personnel. This clearly shows that the footage is edited to some degree. The repeated requests of the applicant for the original footage has been denied to the 11 OA.No.458/2021/CAT/Bangalore Bench applicant. It is not even made clear whether the DGoV edited the footage or whether the anonymous complainant edited the footage.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant while working as Inspector of Customs Air Cargo Complex, Bangalore was issued with a Charge Memo dated 19.07.2017 on the charges that, while performing his duties at Air Cargo Complex, Bangalore, he received money three times from different persons for illegal gratification, while signing official documents and further allowed a stranger to operate the official computer. These acts were video recorded. By the above act, the applicant acted in a manner unbecoming of Government servant and violated clause (i), (iii), (vi), (xv), (xviii) & (xxi) of sub rule 1 of Rule 3 of CCS (Conduct) Rules,1964.
b) The domestic inquiry held in this regard culminated in imposing a penalty of "removal from service" vide order dated 17.10.2018. The applicant approached this Tribunal in O.A.No.170/01887/2018, against this order. However, at a later stage, he withdrew the application.
c) In the appeal preferred by the applicant, the order issued by the Disciplinary Authority dated 17.10.2018 was upheld in all respect but, the penalty imposed earlier was reduced to "reduction of pay by three stages for a period of three years" with immediate effect, in terms of Rule 11(vi) read with Rule 14 and 27 of CCS(CCA) Rules,1965. 12
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d) The applicant has continuously harped on the issue of validity of the video footage available in a DVD, as a reliable evidence and has stated that the said electronic evidence is not supported by any law of the land. He has not come up with any new evidence in support of his claim regarding the video recording not being original and the same being photoshopped, morphed and such other allegations. The Applicant has merely reiterated all his submissions from the beginning of investigation by DGoV to his submissions before the Appellate Authority.
e) The view taken by the Inquiry Officer as well as the Disciplinary Authority is that the charged officer (the applicant herein) has taken money in the form of currency notes from the Customs House Agents (hereinafter referred to as CHA) for official work, while working in the Customs area of Air Cargo Complex, Bangalore Customs, Bangalore. This view is justifiably correct, as evidenced from the said video footage, and from the depositions of the applicant (charged officer), Shri Munindra and Shri Ramesha (who came in to depose for Shri Vinod Kumar). It is lucidly evident that all these persons including the applicant herein, have identified themselves as well as each other, in the said video footage. None of them expressed any doubt regarding the said video footage and the contents therein at any stage earlier, especially when the video footage was shown to them first by the officers of DGoV, Hyderabad, for recording their statements. Each one of them has also appended their signature, on the screen shots of the footage, for having seen the video. They had not raised any objection, 13 OA.No.458/2021/CAT/Bangalore Bench of any sort whatsoever, to the incidents indicated in the said video footage. They rather explicitly narrated the events emerging from the said video footage and confirmed the money transactions shown in the video footage, in their statements given before the Assistant Commissioner (Vig.), DGoV, Hyderabad. The fact that money was exchanged was never disputed by anyone. It was also confirmed that the official computer system was restarted by a third person. The fact of the presence of the Applicant and the CHAs in the video footage, as well as the exchange of money between them, is established beyond any reasonable doubt whatsoever.
f) It is a trite and settled law that the admitted facts need not be proved, as held in judgements of various Hon'ble Courts and Hon'ble Supreme Court of India, as listed in the said impugned order. Regarding admissibility of electronic evidence in the context of requirement of fulfilment of conditions under Section 65B of the Indian Evidence Act, as held by the Hon'ble Apex Court and as brought out in the said impugned order, especially in cases where it is not possible to fulfil the said requirement, the Disciplinary Authority was not in possession of the device from which the video footage was recorded and hence, he is not required to produce any certificate under Section 65(B) mentioned supra. In view of the above mentioned observations the plea of the Appellant for observance of conditions under Section 65B ibid, does not hold ground. The contents of the video footage stands admitted and hence, proved. No further verification or forensic examination of the video footage is warranted.
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g) It is a settled law that a departmental inquiry/proceeding is distinct from a criminal trial, where the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973, are strictly applicable. The technical rules of evidence are not applicable in a departmental inquiry and the standard of proof required in a departmental proceeding is "preponderance of probability" as opposed to "proof beyond doubt" in a criminal proceeding, as held by the Hon'ble Supreme Court of India and various other Hon'ble Courts. Therefore, the contention of the Applicant that the video footage has not been verified properly, does not stand the test of law. The said video footage is genuine, insofar as the contents of the video footage have been admitted and accepted, without any demur, of any sort whatsoever, in the course of the recording of their statements, at the investigation stage.
h) It is established clearly that there was a complaint along with the said video footage as evidence, on the basis of which the DGoV had conducted investigation in the matter and recorded statements. Thereafter, a Charge Memorandum was issued by the Disciplinary Authority on the basis of such investigations and evidences. The Applicant was duly informed about the complaint, from the very inception of the investigation, by DGoV and only thereafter, his statement was recorded. Any doubts regarding the complaint and the evidences shown to him ought to have been duly raised at that stage itself. Raising these issues during subsequent proceedings clearly emphasize the fact that such issues are being deliberately raised now, 15 OA.No.458/2021/CAT/Bangalore Bench as an afterthought, in order to derail the disciplinary proceedings and obtain favourable orders.
i) The Applicant has submitted that the statements have not been relied upon in the true sense of the contents therein and that there are contradictory findings in the said impugned order. As brought out in paras 25 to 27 of the said impugned order, it is an undisputed fact that the Applicant is seen taking money in the form of currency notes from the CHAs in the video footage which has been accepted without any demur of any sort whatsoever, by both the Applicant and the CHAs.
j) The submissions of the Applicant and others at later stages, are well considered afterthoughts, to serve their own interests, so as to extricate themselves from the clutches of the clinching evidence against them indisputably emerging from the said video footage. They are all well aware, that their acts of omission and commission, as highlighted in the said impugned order, would attract adverse consequences under the provisions of the Prevention of Corruption Act, 1988, and the Customs Brokers Licensing Regulations, 2013. It is for their mutual interest that they corroborate each other's version.
k) The CHA cannot be expected to accept the truth emerging from the evidence in the said video footage since he is an interested party in the alleged incident of offering illegal gratification, as per decision of the Hon'ble Apex Court in the case of Masalti vs State of U. P. on 4 May, 1964.
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l) As detailed in the said impugned order, it is a fact that contract labourers were engaged and deployed at Air Cargo Complex to assist the officers posted there. They were obviously not on the payrolls of the Air Cargo Complex, as their pay details would only be maintained by the relevant Labour Contractor (who, in turn, would be paid by the department, in terms of the relevant Contract), as per the prevalent and accepted practice, during the relevant time.
m) The Applicant has submitted that he had not permitted any other person to operate his official computer system. It is seen that he is blindly repeating all his earlier submissions. It is clearly evident from the said video footage that the Applicant had allowed an unauthorized person to operate his official computer system, that was available in the office premises and that such indisputable evidence, as emerging from the said video footage, has been accepted by himself and the relevant person who operated the system, without any demur of any sort whatsoever. Their contention that the unauthorized person had only restarted the computer system which was allegedly hung and not working, is blatantly baseless, since operating a computer includes starting the system, restarting the system, working on it and any such other activity in relation to the computer system. Such computer systems are for the official operations by authorized Customs officers only and not for any other person. The officers cannot allow any other unauthorized persons to operate the office computer system. If at all, the computer system had hung, as per the contention of the Applicant, he should have immediately brought this to the notice of the technical 17 OA.No.458/2021/CAT/Bangalore Bench team looking into this aspect, who have been duly posted in the Air Cargo Complex, by the department. As Air Cargo Complex, Customs, Bangalore handles large volume of import and export clearances, it cannot be held up due to computer systems not working. There is adequate technical support team available within the premises to rectify all the departmental computer systems.
n) All the submissions of the Applicant upto the stage of Appeal have been duly considered and the facts have been analytically brought out in the said impugned order. The contention of the Applicant that all his submissions have been dismissed, is clearly false, since all facts have been considered in the said impugned order and it has been held that the charge of acceptance of illegal gratification by the Applicant is not supported by any evidence by the Investigating/Inquiry authorities. Accordingly, in the said impugned order, the penalty imposed on the Applicant has been reduced from the initial penalty of "removal from service", which was imposed in the Order in-Original passed by the Disciplinary Authority in the instant case. This reduction in penalty was on the basis of the evidences and statements on record, in the instant case, and not on the basis of any evidences submitted by the Applicant. Each and every submission of the Applicant had been considered judiciously, strictly adhering to the principles of Natural Justice and a well-reasoned and completely legal order has been passed by the Appellate Authority.
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o) The Applicant had admitted and accepted to have taken money from three CHAs on three different instances, while performing his official duties pertaining to clearances; allowed unauthorized person to operate the official computer; and admitted to have used the CHAs to fetch him juices, coffee and snacks. Therefore, he had acted in a manner which is unbecoming of a Government servant, lacked devotion to duty and thereby failed to maintain high ethical standards and honesty, failed to perform and discharge his duties with the highest degree of professionalism and dedication to duty as expected of a Government servant, failed to maintain absolute integrity while at work and misused his position as Customs Officer in the Air Cargo Complex Shed, Bangalore Customs.
p) While the charge of exchange of money by the Applicant while he was working in his official capacity in ACC shed, Bangalore Customs, Bangalore, is undisputed and established, the charge of demand and acceptance of this money, as illegal gratification for official favour while doing his official duty, was not established in the instant case. The fact that the Applicant has permitted an unauthorized person to operate the official computer system is also established. Though these charges against the Applicant are grave and serious, they were found to be not enough to establish acceptance of illegal gratification and hence, the penalty of removal from service was found to be not applicable, in the instant case.
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q) The penalty imposed is commensurate with gravity of the proven charges and accordingly a major penalty of reduction in pay by three stages from the pay for a period of three years with immediate effect, in terms of Rule 11(vi) read with Rule 14 and 27 of the CCS (CCA) Rules, 1965, was imposed on the applicant. The applicant was also reinstated with immediate effect and asked to report to office of the Principal Commissioner/Commissioner of Central Tax, Audit-II Commissionerate, Bengaluru. Thus, the said impugned order is a just and fair order and has been issued in the interest of justice.
4. The applicant has filed a rejoinder to the reply filed by the respondents and has averred as follows:
a) The Applicant submits that if nobody in the department has the original footage, it is clear that the anonymous Complainant has edited the video footage to make it look incriminating. The Applicant has repeatedly stated that the complete footage will show that the CHA agents provided him with the food items that he had requested them to provide. Further, the Respondents while claiming that admitted facts need not be proven, the Respondents conveniently fail to mention that the only admitted fact is receiving of money. However even the 3rd Respondent has given a finding that mere receiving of money does not establish illegal gratification. That finding is not challenged by the department and has reached finality. Such being the case, if illegal gratification is not established, then the basis for the charge framed against the Applicant falls. The Respondents need to establish that the 20 OA.No.458/2021/CAT/Bangalore Bench money was received as illegal gratification. In this regard, the Respondents have independently questioned the CHA Agent and the said Agent has stated that the money was in relation to food items purchased for the Applicant.
b) If the Respondents contend that the charge of illegal gratification is not established, then the entire Statement of Imputation of Misconduct in relation to Article- I fails and anything else that the Respondents want to contend is beyond the scope of the charge memorandum.
c) The contention of the Respondents that the mere acceptance of money from the CHAs is unbecoming of a Government servant, and he failed to maintain absolute integrity while at work, and misused his position as Customs officer, is completely outside the scope of the charge memorandum. As stated above, the contention of the Respondents at the time of issuance of the charge memorandum is that the Applicant received illegal gratification. Now that the Applicant has clearly established that he has not received illegal gratification, the Respondents are seeking to move the goal post and claim that mere receiving of money is unbecoming. The Applicant submits that he has never had an opportunity to defend himself against this new claim and has all throughout the proceedings been defending himself against the claim of illegal gratification. This is in violation of principles of natural justice.
5. Heard learned counsels for the parties and perused the pleadings made by them.
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6. In the present case, the applicant has challenged the imposition of penalty on him vide order dated 17.10.2018, which was subsequently modified by the Appellate Authority and the modified penalty was imposed on the applicant vide order dated 15.4.2021. The initial penalty imposed upon the applicant by the Disciplinary Authority, was "removal from service", which, on appeal, was modified by the Appellate Authority to "reduction in pay by 3 stages from the pay for a period of 3 years".
7. The charges against the applicant were that the applicant, while performing his official duty at Air Cargo Complex, Bangalore while signing official documents, had taken money 3 times from unknown persons on 18.6.2015. The second charge was that he had allowed a private individual on 18.6.2015, to operate his official computer at the Air Cargo Complex.
8. Initially the Inquiry Officer had come to the conclusion that the charges were "not proved" against the applicant. However, the Disciplinary Authority, after disagreeing with the views of the IO, had come to the conclusion that based on the compelling evidence flowing from the video clipping, there was no occasion to doubt the occurrence of the malafide acts of the applicant, while performing his official duty on 18.6.2015. He had received money 3 times from different persons, while performing his official duty at ACC, Bangalore, as illegal gratification on 18.6.2015 and also allowed an unauthorized person to operate office computer on 18.6.2015.
9. After holding both the charges as "proved" against the applicant, the DA concluded that the applicant had failed to maintain proper devotion to duty and acted in a manner unbecoming of a Government servant and rendered 22 OA.No.458/2021/CAT/Bangalore Bench himself liable for penal action under the provisions of Rule 14 of CCS (CCA) Rules 1965. The applicant was in a position of trust, handling and approving documents relating to imports/exports under the Customs Act, 1962, where honesty and integrity are inbuilt requirements for his functioning. The applicant had failed to display the required honesty and integrity and he accordingly, imposed the penalty of "removal from service"
on the applicant.
10. The Appellate Authority, after a detailed examination of the appeal filed by the applicant, held that the applicant had taken money from private persons on 18.6.2015 and also permitted unauthorized person to operate the official computer. The Appellate Authority, however, concluded that since the charge of illegal gratification as a quid pro quo had not been proved, therefore, the penalty imposable on the charged officer should be proportionate to the charges made and proved. Consequently, the Appellate Authority modified the penalty imposed upon the applicant from "removal from service" to "reduction in pay by 3 stages from the pay for a period of 3 years".
11. The applicant is challenging the final penalty order imposed on him primarily on the following grounds, as follows:
i) That the Video footage relied upon by both the Disciplinary authority and Appellate Authority is not the complete footage. The device from which it was recorded or even the original recording has not been produced or relied upon by the Disciplinary authority. 23
OA.No.458/2021/CAT/Bangalore Bench Keeping this in view, his contention is that the evidence of video recording cannot be relied upon.
ii) He has further submitted that although there was an admitted exchange of money between the private persons shown in the video and the applicant, it has not been established that this was a case of illegal gratification. His contention is that he had received that money as a part of balance payment, which had earlier been made to the concerned persons for food and drinks requisitioned by the applicant from these persons. He has further relied upon the submissions made by the concerned persons as well, who have also reiterated that they were only giving back the balance amount to the applicant after buying food and drinks for him, from the money given by him earlier.
iii) His computer was giving him some trouble. He had only allowed the concerned person to restart the computer, since it was giving some problem. He had not allowed the said person to operate the computer system, on his behalf.
12. These contentions have been rejected both by the Disciplinary Authority as well as the Appellate Authority. The Appellate authority has held that this is an afterthought by the applicant so as to extricate himself from the clutches of the evidence in the Video footage.
13. As far as admissibility of the video recording as evidence is concerned, the strict provisions of the Indian Evidence Act are not applicable in disciplinary proceedings. Various courts have held in a number of cases that the 24 OA.No.458/2021/CAT/Bangalore Bench appreciation of evidence in disciplinary proceedings is the domain of the concerned Disciplinary Authority and the Appellate Authority.
14. In B.C. Chaturvedi v. Union of India & Ors. ((1995) 6 SCC 749), a three Judge Bench of the Apex Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to 25 OA.No.458/2021/CAT/Bangalore Bench reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India vs. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
15. The Honourable Supreme Court of India in Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 on 3 November, 2014 had observed as follows:
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the 26 OA.No.458/2021/CAT/Bangalore Bench Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a) the enquiry is held by a competent authority;
b) the enquiry is held according to the procedure prescribed in
that behalf;
c) there is violation of the principles of natural justice in
conducting the proceedings;
d) the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and merits of the case;
e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i) the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the High Court shall not:
i) re-appreciate the evidence;
ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
iii) go into the adequacy of the evidence;
iv) go into the reliability of the evidence;
v) interfere, if there be some legal evidence on which findings can be based
vi) correct the error of fact however grave it may appear to be; 27
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vii) go into the proportionality of punishment unless it shocks its conscience."
16. In State of Andhra Pradesh and others v. S. Sree Rama Rao (1963 AIR 1723, 1964 SCR (3) 25), the Apex Court has observed as follows:
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."28
OA.No.458/2021/CAT/Bangalore Bench
17. In this particular case, the applicant has admitted the events which had been shown in the video recording, to the extent that he has not denied the acceptance of money from the concerned persons while signing documents. His defence is that his medical condition required him to take some snacks and coffee and he had requested the concerned persons to get the required food and beverages for him. He had paid some money to them for this purpose and he was receiving back the balance amount from them.
18. His contentions have not been accepted both by the DA as well as the Appellate Authority, since it has been shown in the video that he was receiving money while signing the documents from 3 different persons at that time. Although there is no evidence relating to any quid pro quo or acceptance of illegal gratification, there is no doubt that there was receipt of money by the applicant from these persons who were Clearing House Agents (CHAs) of customs department. The applicant was dealing with the official cases relating to these CHAs and it was not appropriate for him to ask these CHAs to buy him food and drinks on payment basis. This activity should have been left to the concerned subordinate staff in the Customs department itself and there was no reason for the applicant to ask for such assistance from the CHAs.
19. Moreover, the CHAs who were seen as giving money to the applicant, would never admit that this was a case of illegal gratification or a quid pro quo, since it could also incriminate them as a bribe giver.
20. The Appellate Authority, in his findings, has observed that although the fact of quid pro quo cannot be established definitely in this situation, there is no 29 OA.No.458/2021/CAT/Bangalore Bench doubt that the applicant had acted, by accepting money from CHAs in Customs House area at the time of signing the documents and doing official work, in a manner which is unbecoming of a Government servant. This finding of the Appellate Authority cannot be considered to be arbitrary and capricious. It is a reasonable conclusion arrived at by the Appellate Authority after due consideration of the contentions of the applicant.
21. The second charge related to allowing an unauthorized individual to use the official computer in the Customs department. This charge has also been established, and admitted by the applicant. He has however, stated that the private person was only helping in restarting the computer since it had got stuck due to some technical reason. It is of no consequence whether the private person was involved in some unauthorized or illegitimate operation, or merely helping in restarting the computer system. The applicant was not expected to allow any unauthorized individual to handle the computer system in the Customs Department where sensitive data is being fed.
22. During the course of arguments, the respondents were directed to produce a copy of the investigation report of the applicant. In compliance of the same, the respondents have produced a copy of the investigation report. As per this report, apart from the applicant, there were video recordings of three other officers, which have been shown as taking money from unknown persons during the course of discharge of their official duties at ACC, Bengaluru. Consequently, major penalty proceedings were initiated against Shri B.M. Ramachandra Superintendent, Smt. Sendhamarai Selvi Superintendent, and Shri Kasturi Ranga, Inspector, besides the applicant. 30
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23. The respondents were consequently directed to place on record the conclusion reached in the penalty proceedings against the 3 other officers i.e. Shri B.M. Ramachandra Superintendent, Smt. Sendhamarai Selvi Superintendent, and Shri Kasturi Ranga, Inspector. The respondents filed a memo dated 10.11.2023, vide which copies of documents relating to proceedings finalised against Shri B.M. Ramachandra, Smt. Sendhamarai Selvi, and Shri Kasturi Ranga have been produced by the respondents, intimating that all the 3 officers have been punished by imposition of a penalty under CCS (CCA) Rules. The contention of the applicant that the other persons against whom similar allegations had been made, have been let off, is, therefore, not correct.
24. Keeping the above points in view, the prayer of the applicant to set aside the orders passed by the Disciplinary Authority and the Appellate authority, cannot be countenanced. Both these detailed orders have been passed by the respective authorities after due consideration of the contentions of the applicant and following the due process of law and observing the principles of natural justice.
25. The Appellate Authority after a detailed consideration has modified the penalty of "removal from service" imposed on the applicant by the Disciplinary Authority to a lesser/lower penalty of reduction of pay by 3 stages for a period of 3 years with immediate effect. The penalty imposed on the applicant, does not seem to be grossly excessive or unreasonable and is proportional to the misdemeanor of the applicant in this case. This Court, 31 OA.No.458/2021/CAT/Bangalore Bench therefore, finds no ground to interfere with the orders passed by the Appellate Authority.
26. The present OA, therefore, lacks merit and deserves to be dismissed.
Accordingly, the OA is dismissed.
27. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/vmr/