Judgment:
1. The question before us for decision in this case is whether the allegations made in the charge-sheet dated 16.11.99 (Annexure-A3) issued against the applicant and the statements of imputations of misconduct as mentioned in articles of charges 1 and 2 of the charge-memo, if remain unrebutted from the side of the delinquent official, would warrant a departmental proceeding on the charge of culpable negligence in the conduct of the applicant being violative of the provisions Rule 3(1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964 or not.
2. According to the applicant, while he was functioning as Joint Commissioner of Customs and Central Excise, Calcutta, he suddenly to his prejudice, received the impugned charge-memo dated 16.11.99 along with the articles of charge and imputations of misconduct for holding a departmental enquiry under Rule 14 of CCS (CCA) Rules, 1965 for imposition of major penalty. On receipt of the said charge-memo, the applicant gave a reply denying the allegations brought against him in the alleged charge-sheet. But the respondents proceeded with the enquiry and appointed an enquiry officer for holding the enquiry on the charges levelled against the applicant. The applicant participated in the enquiry.
3. In the meantime, one Smt. Dolly Saxena, the then Commissioner of Customs and Central Excise (Judicial), Jaipur, who also faced similar nature of charge-sheet on the same issue from the respondent authorities, had challenged the same before the Central Administrative Tribunal, Principal Bench by filing OA No. 2199 of 1999 (Ms. Dolly Saxena v. UOI and Ors.) stating inter alia that on the basis of the allegations made against her in the charge-sheet issued to her, she could not be subjected to a disciplinary proceedings under CCS (CCA) Rules for her alleged act of recklessness and negligence in passing an adjudicatory order. The said OA was resisted by the respondents by filing a written reply. Eventually, the OA was disposed of by the Principal Bench of the Tribunal on 26.1.2000 holding that on the basis of the allegations brought against the applicant, Smt. Dolly Saxena, she was not liable to be subjected to any disciplinary proceedings. In para 16 of the judgment, the Tribunal categorically held that "the allegation made in Article 2 of the charge also appears to be not correct. The applicant was found fault for relying upon the report of the Asst. Collector (Judicial) (the present'applicant) without taking the assistance of the experts from the department's side. It is not in dispute that the Assistant Collector (Judicial) after making physical verification of the machinery had given his report. In fact, this report of the Assistant Collector (Shri Rajan Suri) has not been found fault by the Board while reviewing the order of the applicant (Smt.
Dolly Saxena). Moreover, the successor to the applicant, Shri Mahender Prasad, who passed the order after the appeal was remanded by the CEGAT, has relied upon the same report of Shri Rajan Suri. There was no other report on record before him. He did not find that the said report was a perfunctory one." 4. According to the applicant, while he was functioning as Asst.
Collector of Customs and Central Excise, Jaipur, he was asked by his superior i.e. Smt. Dolly Saxena, to submit a report by holding an inspection in the proceeding initiated against the alleged company M/s J.K. Synthetics. According to him, as per her direction, he conducted an enquiry and submitted his report on 4.5.91. Relying on the said report, Smt. Dolly Saxena, the then Chief Commissioner, Jaipur, adjudicated the matter and exonerated the said company from the charge levelled against them and for this reason, Smt. Saxena was charge-sheeted on the allegation of recklessness and negligence in passing the adjudication order. It was also alleged that she proceeded by relying on the report of Asst. Collector (Judicial) without ensuring association of expert appraiser from department's side. Thus she had relied on a report which was evidently perfunctory without considering the activity of the party. Challenging the said charge-sheet, she moved the Principal Bench as mentioned above. It is contended by the applicant that his aforesaid report was neither found perfunctory nor based on merit by any competent authority in a judicial proceeding. So, the charge levelled against him in the impugned charge-memo is without any basis or for any valid reason. Therefore, the said charge-memo should be cancelled or set aside. It is also contended by the applicant that although the disputed report was submitted by him on 4.5.91, the respondents did not take any action against him till 1999 when the impugned charge-sheet was issued. In the meanwhile, he was also given promotion to the post of Dy. Commissioner in the year 1997. According to the applicant, the impugned charge-sheet has been issued after a lapse of more than 8 years in order only to harass him and to bypass him from getting the next higher grade.
5. The applicant has also alleged that the impugned charge-sheet is not maintainable since it does not disclose on the face of the same, any misconduct against the applicant which is proposed to be investigated or enquired into by the enquiry officer. He also submits that the delay in issuing the charge-sheet is fatal and therefore, the charge-sheet should be quashed.
6. The respondents have resisted the application by filing a written reply. They have also filed a Misc. application for vacating the interim order passed by this Tribunal while admitting this OA by directing the respondent authorities not to proceed with the OA proceeding further and not to give effect or further effect to the charge-memo. However, the said MA has also been heard along with the OA and as a result the interim order is still subsisting.
7. In the reply, the respondents have stated that the applicant Shri Rajan Suri was functioning as the Asst. Commissioner (Judicial) at the material time at Jaipur. The Collector (Judicial), Jaipur directed him to offer comments on certain points in the show cause notice No. VIII (AS) 10/3/89 against M/s J.K. Synthetics Ltd., Kola and others.
Thereafter, the applicant constituted a team headed by himself which inspected the imported goods at the site on 3.5.91 and thereafter a report was submitted which categorically revealed that 8 machines were found to have been installed in the premises of the said importer company. On the basis of such report submitted by the applicant, the said Collector (Judicial), Jaipur (Ms, Dolly Saxena) dropped the said show cause notice. But the investigation carried out by the Director General, Revenue Intelligence revealed that the said imported consignment could make 10 machines. Accordingly, the department preferred an appeal before the CEGAT against the adjudication order passed by the Collector (Judicial), Jaipur. In its order, the Hon'ble CEGAT remanded the case for de-novo adjudication. Subsequently, the demand of duty of 10 machines was confirmed in the de-novo proceedings.
It is further stated by them that from the aforesaid facts, it is crystal clear that the report submitted by the applicant was incorrect which resulted in dropping the demand against the importer company. In this connection it is pertinent to mention that the applicant did not obtain the order of the Collector (Judicial) regarding the constitution of team, the manner in which the verification was to be done etc.
Furthermore, he did not ensure association of expert appraisers from the department's side inasmuch as, in the absence of any expert appraiser in the team, the verification done by the team was perfunctory. Besides, the applicant failed to realise that as the clearance of the goods from the warehouse or installation of the machines in the factory premises was not done under the supervision of the officers of the Customs and Central Excise Deptt. and therefore, the team should verify whether all parts and components which had been imported were available at the factory premises at the time of verification and whether all the parts and components had actually been brought and installed at the factory premises. Such act and conduct on the part of the applicant disclose motivated action on his part with a view to help the importer company. It is also stated by the respondents that several recent decisions of the Hon'ble Apex Court and Tribunals are that the Court or Tribunal should not interfere at the stage of issuance of the charge-sheet. It is also contended that the merit of the charge-sheet dt. 16.11.99 is yet to be adjudicated by following the procedures laid down in the CCS (CCA) Rules. Such being the position, the Tribunal should not interfere at this stage and the proceeding should continue till the final order is passed by the competent authority. As regards delay in issuing the charge-sheet it is stated by the respondents that no doubt there was delay in initiating the charge-memo but the said delay was neither voluntary nor intentional.
Delay was caused due to circumstances beyond control of the Administration.
8. We have heard the Id. Counsel for both parties at some length. Mr.
R.N. Das, Id. Counsel for the petitioner has contended that if the charge-memo and ihe imputation of misconduct remain unrcbuilcd from the side of the applicant, even then the allegation brought against him does not constitute any misconduct. So, it would be futile to allow the applicant to suffer the long procedure of a OA proceeding for nothing and hence the charge-memo should be quashed at the threshold. He submits,that unless the allegation of misconduct is supported by appropriate evidence or the statement of imputation made in the charge-sheet are established prima facie, it would be an futile exercise to allow the enquiry officer to enquire into the allegations which are vague in nature. He has also submitted that inordinate delay has caused prejudice to the applicant. He contends that the alleged report was submitted by the applicant in May 1991 while the impugned DA proceeding has been initiated against him only in 1999. The applicant submitted his report as per direction of his superior officer i.e.
Collector (Judicial). Thereafter, he got a promotion to the next higher grade of Dy. Commissioner in 1997 and is due for further promotion for selection grade. He has also contended that the report of the applicant submitted in 1991 was not found fault with by any judicial authority.
Mr. Das has also drawn our attention to para 16 of the judgment passed by the Principal Bench in Dolly Saxena's case (supra) and submitted that the Principal Bench of the Tribunal has categorically observed that "in fact this report of the Assistant Collector (Rajan Suri) has not been found fault by the Board while reviewing the order of the applicant. Moreover, the successor to the applicant Shri Mahender Prasad, who passed the order after the appeal was remanded by the CEGA, has relied upon the same report of Shri Rajan Suri. There was no other report on record before him. He did not find that the said report was a perfunctory one". Therefore, Mr. Das contends that in view of this clear finding by the Principal Bench the entire foundation for initiating the charge-sheet against the applicant falls back and hence the charge-memo has to be quashed.
9. Mr. Das has also drawn our attention to para 20 of the judgment of the Principal Bench referred to above wherein it has been stated that the Hon'ble Supreme Court in Nagarkar's case "Z.B. Nagarkar v. UOl, 1999(4) SCALE 480, has held that an officer performing judicial functions cannot be proceeded against departmentally under the conduct rules for writing a wrong order. An officer can be proceeded against on the allegation of negligence only if it was a culpable negligence.
Passing a wrong order cannot be said to be an order passed by way of culpable negligence. This aspect was dealt with by the Supreme Court in State of Punjab v. Ram Singh, Ex Constable, 1992(4) SCC 54=1992(3) SLJ 160 (SC). It was held that mere error in judgment, carelessness or negligence in performing duty cannot be said to be misconduct. It was emphasized in Nagarkar's case that if every error of law were to constitute a charge of misconduct, it would infringe upon the functions of quasi-judicial officer.
10. Mr. Das has also relied upon a number of judgments of the Hon' ble Supreme Court viz., 1990 (Supp) SCC 738, State of Madhya Pradesh v.Bani Singh and Anr., 1995(1) SCSLJ 233 = 1995(2) SLJ 126 (SC), State of Punjab and Ors. v. Chamanlal Goyal, 1998 (8) SLR (Cal HC) 8, U.N.Biswas v. UOI etc. Relying on the aforesaid judgments, Mr. Das contends that the charge-sheet and the imputations of misconduct does not disclose negligence on the part of the applicant. Therefore, the entire proceeding should be quashed.
11. In addition to this he has further submitted that the note-sheets in respect of initiation of the departmental proceeding against the applicant i.e. the Presidential sanction order in respect of the initiation of the proceeding against the applicant is found to be missing. So, the respondent authorities should not be permitted to proceed against the applicant without proper authorisation from the competent authority. He points out that the respondents have failed to produce the departmental records inspite of directions from this Tribunal. Therefore, it should be presumed that they have wilfully withheld the records because if the records were produced before this Tribunal, it would prejudice their case that proper sanction was not obtained from the President before initiation of the proceeding against the applicant. He, therefore, contends in view of failure of the respondents to produce the relevant records, adverse presumption should be inferred against them.
12. Mr. Samadder, Id. Counsel for the respondents submits that the application is devoid of merit and should be dismissed in liminie in view of the judgment of the Hon'ble apex Court that the Court or Tribunal should not interfere with the proceeding at the charge-sheet stage only and that truth or otherwise of the charge is for the departmental authorities under the rule to Judge and the Tribunal should not substitute itself in place of the departmental disciplinary or enquiry authority. On the question whether delay has caused prejudice to the applicant, Mr. Samadder submits that it is true that there was some delay in initiating the proceeding. But for the same the respondents are not to-be blamed and on this ground alone, the Tribunal should not interfere with the charge-sheet. He relied on Chamanlal's case (supra) and also on the judgment reported in AIR 1996 SC 484, B.C.Chaturvedi v. UO1. He submits that since there was no infirmity in the proceeding, the application should be dismissed in liminie.
13. Before adverting into the points of law advanced by the Id. Counsel for both parties, we may mention about the conduct of the respondents regarding production of relevant documents. We passed an order on 18.1.2000 in this context and in that order it was observed by us that since the respondents have failed to produce the record as called for, this would be recorded in the final judgment to be passed in this OA.Though the records as called for, could not be produced by the respondents, Mr. Samadder contended that no adverse presumption should be taken against the respondents and on the other hand it should be presumed that in the normal course of business, Presidential sanction was obtained in the case of the applicant while initiating proceeding against him. He submits that no authority under the respondents would dare to act in such a manner against the rule in the name of the President.
14. We have considered the rival contentions in this regard. For deciding this question, we may refer to Section 114 (g) of the Indian Evidence Act, 1872 which provides that the Court may presume that "evidence which could be and is not produced would, if produced, be unfavourable to the person withholds it. In the instant case, there was specific direction from this Tribunal upon the respondents to produce the relevant records, particularly, the record containing the Presidential sanction for initiation of DA proceeding against the applicant. If the records are missing or not readily available, the respondents could have mention it before this Tribunal fairly. But no such course has been taken by the respondents. However, from certain records produced before us to-day, we find a letter bearing No.W/CEX/53 dated 4.12.2000 written by Servesh Kumar, Director, Central Vigilance Commission, New Delhi addressed to Shri N. Raja, DG (Vig.), C.B.E.C. New Delhi wherefrom it appears that it was observed by the Commission that the note sheet was in the file when it was inspected by the charged officer and it is believed that the charged officer removed it during the inspection and that the logical conclusion was that the Presenting Officer was careless when he provided the inspection to the CO. Although the name of the CO was not disclosed in this letter, but it appears that period in question mentioned therein may relate to Smt.
Dolly Saxena. So, we are satisfied that the file is missing. Since the file, rather the note-sheets are missing, we have no other alternative but to hold that the Presidential sanction regarding initiation of DA proceeding against the applicant was not obtained by the competent authorily though the charge-sheet was issued in the name of the President. Therefore, we have to infer adverse presumption against the respondents in this regard. In this context, we may also refer to para 21 of the Judgment of the Principal Bench in Dolly Saxena 's case wherein it has been observed that "as we find that there is no basis for the disciplinary authority to proceed against her departmentally, the respondents cannot be allowed to continue the enquiry in the absence of any allegations as to the misconduct." We find that the case of Dolly Saxena has direct nexus with the present case of the applicant. In Article 2 of the charge-sheet issued against Smt. Dolly Saxena, it has been mentioned that "Smt. Saxena had also based her order for dropping the proceedings on the physical verification conducted by the AC (Judicial) without ensuring association of expert appraiser from department's side. Thus she had relied on a report which was evidently perfunctory without considering the activity of the party." In Article 1 of the Charge-memo issued against the applicant, it has been stated, that "Shri Rajan Suri constituted a team headed by himself which inspected the imported goods at the site on 3.5.91 and submitted a report which categorically stated that eight machines were found to have been installed in the premises of the notice company. On the basis of the inspection report submitted by Shri Rajan Suri, the Collector (Judicial) Smt. Dolly Saxena dropped the SCN. The department filed an appeal against the adjudication order passed by the Collector (Judicial). The CEGAT in its order remanded the case for de novo adjudication. Subsequently, the demand of duty was confirmed in de novo proceedings by the Collector. For constituting his team for physical verification of the goods imported by M/s. J.K. Synthetics Ltd. Kota, Shri Rajan Suri did not obtain orders of the Collector (Judicial) regarding constitution of the team, the manner in which the said verification was to be done or the specific parts and components which were to be verified. Shri Rajan Suri also did not ensure association of experts appraisers from the department side and instead depended on the officers of the importers, some of whom are notices in the SCN, for conducting the physical verification. In the absence of any expert appraiser from the department the team, the verification done by the team was perfunctory." So, we find that Smt. Dolly Saxena has been charged in the departmental proceedings for relying the alleged perfunctory report submitted by the present applicant. But the charge-sheet against Smt. Dolly Saxena has been found to be baseless on the face of the judgment passed by the Principal Bench wherein the Tribunal held that the report of Shri Rajan Suri (present applicant) was not found to be perfunctory.
15. Moreover, on our query, the Id. Counsel Mr. Samadder also could not satisfy us under what provision of the rules, the applicant was to ensure assistance of expert appraiser during conduct of the spot enquiry. Unless he is specifically directed by the higher authority to do so, he had the discretion to conduct the enquiry in the manner he thinks fit. Therefore, we do not find any fault on the part of the applicant for not ensuring the assistance of any departmental appraiser during the alleged investigation as complained against in the charge-sheet. It may also be pointed out that besides the applicant, the team comprised two other senior officers, who also signed the said report. But no allegation has been brought against them. Therefore, we do not find any merit in this part of the charge against the applicant.
16. It is true that this Tribunal is not competent to go into the truth or otherwise of the allegations made against the applicant in the charge-sheet. But prima facie it appears that there was no misconduct on the pan of the applicant and the matter has already been adjudicated by the Principal Bench and it was categorically held that the report of the applicant was not perfunctory and therefore, we have to hold that there cannot be any allegation of misconduct as alleged in the articles of charge levelled against him.
17. It has been held by the Madras High Court in the case of N.Monoharan v. State of T.N., AIR 1981 Mad. 147 that rules of natural justice demand that the employee charged must know the nature of offence he has committed and be given an opportunity to defend himself and to give a proper explanation. Our attention has been drawn to a recent decision of the Hon'ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. UOI, (supra) wherein it has been held that initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer.
Merely because penalty was not imposed and the Board in exercise of its power directed filing of appeal against the order in original passed by the appellant could not be enough to proceed against him. It has further been held that when penalty is not levied, the assessee certainly benefits but it cannot be said that by not levying penalty, the officer has favoured assessee or shown undue favour to him, there has to be some basis for the disciplinary authority to reach such a conclusion even prima fade. In the instant case, there is not even any allegation that the applicant shown favour to the company by not taking the assistance of departmental appraiser. The only allegation against him that he did not ensure the assistance of any appraiser. As we have already noted above, that there is no rule shown to us requiring the present of an expert appraiser from the department in such case of investigation. There was also no direction from higher authority on the applicant to include a departmental appraiser while conducting the investigation. Therefore, we do not find any merit in the allegation brought against the applicant.
18. Regarding delay in holding the enquiry, the Hon'ble Supreme Court has held in B.C. Chaturvedi's case (supra) that whether delay in initiating DA proceeding has caused prejudice to the delinquent has to be decided on considering the facts of each case. Here, the applicant submitted his report in 1991 and the proceeding was initiated against him in 1999. There was, therefore, a delay of about more than 8 years.
It is the specific contention of the applicant that the charge-memo has been issued only to deprive him of his rightful claim for next higher selection grade which his juniors have already got. Mr. Samadder has tried to explain the delay that it was due to departmental procedure which has caused this delay and the Vigilance Commission had also to be consulted. We find that the vigilance raised objection in the year 1989 and they completed the enquiry only in 1996. The applicant submitted his report in 1991 and charge-sheeted in 1999 after receipt of report from the vigilance. It is, therefore, clear that the departmental authority was not sure about the guilt of the applicant. In the meantime, he was also given promotion in the year 1997. Thus, we hold that the delay in initiating the proceeding against the applicant has seriously prejudiced the applicant.
19. In view of our discussions made above, we allow this application.
The charge-memo dt. 16.11.99 and the enquiry proceeding started on its basis are hereby quashed. The respondents are directed to give all consequential benefits to the applicant including consideration for selection grade from the same date when his juniors got it. The contempt proceeding initiated against the respondents in this matter will be dealt with separately. This direction be complied within two months from the date of communication of this order. There will be no order as to costs.