1. The applicant before his retirement was served with a show cause notice on 6,7.90. Immediately after the charge sheet he was suspended from service. But he was allowed to retire on attaining the age of superannuation on 30.6.90. On 26.4.94, he was served with a charge sheet which contains the following articles of charges: Whereas it is alleged that Shri Mir Zamin Ali while functioning as Asst. Collector of Customs, Customs House during 1990 committed gross misconduct and exhibited lack of integrity, devotion to duty and acted in a manner unbecoming of a Government servant in as much as he had sanctioned 50 instances of inadmissible refund claims for a total of Rs. 46 lakhs to the department and thereby contravened Rule 3(1)(i)(ii) and (iii) and 3(2)(i) & (ii) of CCS (Conduct) Rules and rendered himself liable for action under CCS (CCA) Rules, 1965.
The statement of imputation of misconduct was also appended to the charge-sheet along with the list of documents relied on and the list containing the names of witnesses, are also annexed. It is stated in the statement of imputation of misconduct that refund was allowed on the basis of survey report obtained from an independent surveyor without the involvement of proper officer for the same and refund is granted with undue haste and without proper verification. The applicant filed a detailed reply denying the same. Consequently an inquiry officer was appointed. One Dr. P. Rathnaswamy, Commissioner for Departmental inquiries conducted the inquiry and submitted his report.
As per the proceedings dated 29.1.98, the inquiry officer gave his findings as under: In conclusion, on the basis of oral and documentary evidences and written briefs of the PO and the CO adduced during the proceedings, the following are the findings: 2. The disciplinary authority did not accept the findings of the inquiry officer and issued a show cause notice on 29.8.98, asking the applicant to show cause as to why the report of the inquiry officer should not be disagreed and a suitable major penalty should not be imposed on him. To this show cause notice the applicant submitted a detailed explanation. But as per the proceedings dated 17.4.2000, the explanation submitted by the applicant was rejected and 20% cut in the monthly pension otherwise admissible was ordered on a permanent basis.
It is also ordered that the gratuity admissible be released to him.
Against this order the applicant has come before this Tribunal.
3. In the various grounds it is alleged that the impugned order is illegal and against the settled provisions of law. It is also stated by him that when he was discharging his duties, he was exercising quasi-judicial functions and even if he orders refund and if there is any irregularity the same cannot be the subject matter of the charge-sheet unless this amounts to corruption. It is also stated that the impugned order is violative of principles of natural justice since the applicant was not given an opportunity to appear before the Disciplinary Authority even though a specific request was made by him.
It is also stated that the disciplinary authority is very much prejudiced against the applicant. The reason for the same is that the applicant's name figures in the C.V.C's list of officers in their website which has been given wide publicity about the integrity of such officers, which included the applicant's name. His name was also given wide publicity by the Central Vigilance Commissioner after the inquiry and before the final decision is taken by the Disciplinary Authority.
It is stated that he has followed the established practices in ordering refund and it is not the case of Government that any loss is caused. It is stated by him that he has acted as per the provisions in the Customs Act. The main reason for holding the applicant guilty of the charge was that he has passed the refund orders by accepting the report of the private surveyor which has been prepared in the absence of the Customs Officers or Custom House Agents or the Stamer [Steamer] Agents at the time of survey. According to Rules, refund is permissible on the basis of private surveyors report and the presence of Customs officers or Customs House Agents or the Stamer [Steamer] Agents and the report of the private surveyor is not to be ignored due to their absence. In fact their presence is also depricated by decision of various Courts. It is also stated that before passing the refund order there is pre-audit of the refund claim and consequently the applicant alone cannot be held responsible for the alleged errors of omission or commission. It is further stated that the applicant is only a sanctioning officer and not an officer who is processing the claims and recommend refund of the same. It is further stated that even if the shortage was noticed prior to clearance of the goods it was not mandatory on the part of the importer to pay less duty as the procedure is long drawn and time consuming and the importer could illafford to pay the huge demurrage charges and there is no bar in preferring a refund claim subsequently in accordance with law. It is also said that on the basis of evidences the only conclusion that can be arrived is that the applicant cannot be held responsible for the alleged loss. Further if the department had taken immediate steps for the recovery from the persons responsible for the same and when that has not been done it is a clear case of victimisation and the applicant is only discharging quasi-judicial functions and disciplinary proceedings should not have been initiated.
It is also submitted by him that the procedure adopted by him in ordering refund, was adopted by his predecessor and successors also.
The same has not been questioned by the department. Therefore it shows that the procedure adopted by the applicant for refunding is an established procedure and therefore his actions should not have been questioned.
4. A detailed reply has been filed by the respondents. It is stated that the applicant has hastily processed the refund of claims and a sum of Rs. 46,00,000 (Rupess forty six lakhs) has been sanctioned for refund. It is further stated that if at all these claims are admissible it had to be dealt with by Assistant Commissioner in charge of Manifest Clearance Department as normally such refund claims on account of shortages are not dealt with by Assistant Commissioner in charge of Appraising Refund. It is further stated that these claims were processed with undue haste and the cheques for refund amount were handed over to the importers. In view of this the applicant was charge-sheeted. Even if the applicant was asked to process the refund claims expeditiously under the guise of "arrear clearance drive" the applicant should not have disposed of the same without calling for relevant documents. The applicant should not have lowered down the guard of scrutiny in processing the claims because such acceptance of mere survey report and Port Tally Sheet for refund purpose are against the established procedure. It is further stated that even if the applicant is discharging the quasi-judicial functions, he was not charge-sheeted in that capacity but he had been charge-sheeted only because he has sanctioned refund of claims which were prima facie inadmissible. It is further stated that it is not a question of loss of revenue for which he had been charge-sheeted he was charge-sheeted for sanctioning refund claims of over Rs. 46 lakhs. Over which he has no jurisdiction. Hence the respondents have prayed for the dismissal of the O.A.5. A detailed rejoinder has been filed by the applicant rebutting the contentions raised in the reply.
6. We heard the counsel on both sides. We also perused the records which is placed before us including the typed set of papers and the entire disciplinary proceeding file.
7. Before further going into the case, it is better to look into the article of charge, which we have already extracted. It only shows that the applicant has committed gross misconduct and exhibited lack of integrity, devotion to duty and acted in a manner of unbecoming of a Government servant in as much as he had sanctioned 50 instances of inadmissible refund claims for a total of Rs. 46 lakhs.
8. In the inquiry held against the applicant the inquiry officer gave his findings that the charges against the applicant has not been proved. The Disciplinary Authority disagreed with the findings of the Inquiry officer issued a show cause notice asking him to explain as to why action should not be taken against him. The show cause notice Issued by the respondents reads as thus: In the instant case the tally sheet of the Port Trust, the receipt of steamer agent and even the examination report of the Customs at the Dock indicate that there was no shortage in the consignment.
Even the party had accepted the same without any protest. Even assuming without conceding that the presence of the Customs authorities or Port authorities are not required In a Survey. The fact remains that the appointment of Surveyor should be done mutually agreed by all the importers. Evidence adduced during the inquiry suggest that the Surveyor report was not complete. There is no evidence that the goods have been weighed properly and that the actual weight recorded by the Surveyor in his report was correct.
The decision of CEGAT relied upon by the defence and accepted by Io relates to a situation where a definite loss as per records was established and apparently the Survey was conducted without involving the officials of Customs. Further, the acts and omission on the part of the COs observed in this case do not speak of their bona fides. It is seen that there was no shortage of the consignment of landing, during examination by the Customs or even its warehousing before release. The Survey has been conducted in a clandestine manner and the processing and decision taken by the COs was detrimental to the interest of revenue.
Why we are referring to this show cause notice is that it is not for the same charges for which notice was issued on 26.4.94. A detailed reply was given by the applicant to the show cause notice which contains detailed explanation and how the Disciplinary Authority is not justified in coming to the conclusion that prima facie there are evidences against the applicant. We would like to make a reference to this explanation because, in the final order we do not find any mention to this explanation. The respondents have rejected the explanation and found that the applicant is guilty of the charges. The conclusion of the Disciplinary Authority reads as thus: On scrutiny of the case papers the Commission notice that no shortage of consignment was mentioned when the customs have destuffed the full and loose containers in which the consignments were received. The tally sheet of Madras Port Trust also has not mentioned any shortage. The clearing agents who take care of clearing the consignments after remitting the Customs Duty, have also not indicated any damage or shortage to the consignments. The steamer agents who are responsible for the short landing have never recorded any short landing in any of the consignments. None of the importers have approached the authorised agent of the steamer for conducting the survey, even after the survey was granted by steamer agents. In the survey work, no representatives of steamer agents, custom officials or Port authorities were associated. The survey report does not also indicate that there were any independent witnesses when the survey was conducted. The customs duties were paid on the basis of the assessment made by the customs officers without any protest by the clearing agents. No FIR was lodged with regard to the pilferage/theft resulting in shortage of the consignments. The commission are of the opinion that while processing the claim, the charged officers should have examined the possibility of shortage occurring prior to landing so that the Department could have realised the refunded amount, from the steamer agents by way of penalty. It is also quite unlikely that the shortage of such huge quantity went unnoticed by the clearing agents at the time of examination. If there was any shortage, the clearing agent should have brought the matter to the notice of the customs authorities and claimed remission of duty rather than pay the duty first and claim refund later. In many cases, it was observed that the date of alleged survey and detection of alleged shortage was prior to the payment of duties. It is also necessary for the importer to obtain a prior order for survey from the Customs Department as prescribed in the Appraisal Manual before the importer opts for independent survey. While it is true that the absence of customs officials during the survey does not invalidate the survey report, a prior permission is required to be taken from the custom official before conducting the survey, as per the prescribed procedure. The Survey report clearly indicates in respect of certain cases that some additional information is required to be obtained from the concerned party, which clearly affirms that the Survey Report was only an interim report and not a final report and the Charged officer should not have accepted the incomplete report and sanctioned refunds. In all these cases, refunds were granted in less than 7 days and in some cases on the same day and almost similar and identical notings have been recorded in all the files processing these cases. Some of the claims were sanctioned out of turn clearly indicating that Shri Zamin Ali has passed these claims without proper verification and in hurry and indiscriminately. It was, therefore, held by the Disciplinary Authority that Shri Zamin Ali has cleared the consignments without properly verifying the facts on record and on the basis of recommendations given by Shri Selvaraj, Examiner (Legal) without proper scrutiny and assessment. In view of the various deficiencies pointed above, no other conclusion is possible for the Commission except stating that Shri Zamin Ali sanctioned 50 claims of refund without proper scrutiny. Accordingly, the Commission hold the charge against Shri Zamin Ali that "he while functioning as Asst. Collector of Customs, Custom House during 1990 committed gross misconduct and exhibited lack of integrity, devotion to duty and acted in a manner unbecoming of a Government servant in as much as he had sanctioned 50 instances of inadmissible refund claims for a total of Rs. 46 lakhs without adhering to the laid down procedure causing loss of Rs. 46 lacs to the Department thereby contravened Rule 3(1)(i)(ii) and (iii) and 3(2)(i) and (ii) of CCS (Conduct) Rules and rendered himself liable for action under CCS (CCA) Rules, 1965" as proved.
The sum and substances of the findings of the Disciplinary Authority is that prior permission should have been obtained by the applicant before conducting the survey as per the prescribed procedure. It is also stated by the Disciplinary Authority that it is true that the absence of customs official during the survey does not invalidate the survery report. It is also stated that in all these cases refunds were granted in less than 7 days and in some cases on the same day and some of the claims have been sanctioned on out of turn basis.
9. Before further going in the findings of the Disciplinary Authority, we have to take note of the fact that the applicant himself was asked to dispose of the claims of refund in view of the long pendency and complaints were also received for delay in ordering refund claims. It is not the case of the respondents that the 50 cases which are the subject matter have not been entrusted the applicant for disposal. Why we are referring to this is that the counsel for the respondents submitted that the applicant has hastily processed and sanctioned refund claim and if at all admissible that had to be dealt with by Assistant Commissioner in charge of Manifest Clearance Department and not by an Assistant Commissioner in charge of Appraising Refund. In fact the Disciplinary Authority did not think of the applicant is guilty of lacking jurisdiction. The respondents cannot have better case than that of the Disciplinary Authority.
10. The learned Counsel for the respondents relied on the Central Manual of Manifest Clearance Department. Chapter 10 of the above manual deals with refund of duty on short-landed packages. It is true that there is special provision in the manual. The respondents have entrusted the refund cases to the applicant for being disposed of Assistant Commissioner in charge of Manifest Clearance Department is normally directed to refund. But the applicant who is incharge of appraising had been instructed to dispose of refund claims. The specific instruction for refund has been given a go by though it is a case of refund due to short landing. Even before the inquiry officer also we do not find that the respondents have challenged the authority of the applicant for ordering refund claims. The applicant has acted as per the direction given by the authorities. This point is not taken by the respondents even in the subsequent show cause notice dated 29.8.98.
The inquiry officer gave his finding that the charges against the applicant has not been proved.
11. Vigilance inquiry was conducted by an Inspector of Police who has also been examined during the inquiry. (P.G. Kothandabalan, Assistant Commissioner of Customs (Vigilance) South Zone retd. According to him he made an inquiry. It reveals that refund was done in accordance with the existing rules. The only complaint is that refund was ordered showing extra enthusiasism [enthusiasm]. It is also the case of the respondents that refund was sanctioned based on the survey report issued by an independent surveyor without the involvement of other Customs Authorities. Even according to the respondents refund orders were issued in accordance with the existing rules.
12. The learned Counsel for the applicant further submitted that the applicant has been found guilty only because he has not taken the prior permission from the Customs authorities and he has not taken the assistance of Customs authorities.
13. The learned Counsel for the applicant relied on various decisions in support of this contention that refund can be ordered even on the basis of independent surveyors report. (M/s. International Auto Suppliers v. Collector of Customs, Bombay 1985 ECR 1277 (CEGAT Bombay) Paras 5 and 6 of the order reads as under: 5. In his order the Appellate Collector had stated that the appellants have failed to comply with the requirement of the provisions of Section 23, in that they have not invited the Customs to supervise the survey. Shri Gidwani had also contended that the Customs was not associated with the survey and as such, the survey report cannot be accepted. I have gone through the provisions of Section 23 of the Customs Act, 1962 (to be referred to as 'the Act'). This section nowhere lays down that the Customs Authorities shall be associated with the survey. Shri Gidwani is also unable to point out any other provision in the Customs Act, which makes it obligatory to associate the Custom Authorities whenever a survey is held. 6. Survey is done for various purposes. One of them is to establish shortages. The value to be attached to a survey report depends upon various circumstances, such as place of survey, viz., as and when cargo is being discharged, or immediately after the cargo is landed or within a reasonable period thereof, the purpose for which survey is held, the persons and the authorities associated at the time of survey, independence and competence of the surveyors as well as the accuracy of the survey etc. If the customs Authorities were associated at the time of survey, then it may be difficult for the department later to challenge successfully the survey report or findings. Having regard to the object of holding a survey the adjudicating authorities were required to consider the survey report. It is a valid piece of evidence. In the instant case, the authorities below have not considered the survey report, and as such, their orders suffer from non-consideration of material evidence.
14. The same view was taken by the High Court of Judicature at Madras in W.P. No. 9867/87 and batch (Harakchand and Ors. v. Union of India and Ors.) The relevant portion of the judgment reads as under: On the other hand, the Department resisted the claim for refund arising out of survey shortage, on the ground that the Customs Authorities are not aware of the short landing. Such a contention is not available to the Department in view of the very order dated 4.1.85 of the Collector of Customs (Appeals), Madras in C. No. 3/1970, 1971, 1972 and 1973 of 1982, where it is clearly brought out that while considering the claim under Section 13 and Section 23 of the Customs Act, the Department cannot take the plea that the importers had not brought to the notice of the Customs officers about the shortage before an order for clearance of the goods or physical clearance for house consumption as the case may be has been made. Further there is absolutely nothing in the statute to support the above reasoning and rejecting the claim for refund. It is also observed therein that the non-participation of the customs officers in the survey conducted by the Steamer/Insurance/ Marine Agencies either because the customs officers were not present or the customs officers refused to participate in the survey for reasons best known to them should not affect the eligibility for refund or be a statutory bar for granting refund. In such circumstances the respondent's refusal to entertain a claim for refund arising out of survey shortage is also unsustainable.
15. The learned Counsel for the respondents distinguished these decisions on the ground that in all these cases, it was the importers who came to the Court challenging the refusal of refund claims and in these circumstances it was held that the presence of Customs Officers or Customs House Agents or Steamer Agents is not necessary and their presence is also depricated by Courts. According to the learned Counsel for the respondents whatever may be the view, the cases are against the importers and the Customs Department. It is for the said purpose the counsel for the respondents stated that the Manifest Clearance Department has to order refund. According to the counsel the said Manual contains instructions which makes it obligatory on the part of the Assistant Commissioner to get prior permission of the Customs authorities before taking into consideration the independent surveyor's report. On going through the manual we do not find any such instructions. In fact we do not find any instructions at all regarding the acceptance or reliability of the independent surveyor's report and the circumstances under which it has to be taken into consideration.
The law is well settled that independent Surveyor's report is a material piece of evidence and the same can be taken into consideration and it could also be a sole basis for ordering refund.
16. At this juncture, the learned Counsel for the applicant also relied on Madras Port Trust's Traffic Manual Vol. I wherein it is stated that the independent Surveyor's report are equally acceptable for Customs purpose. The stand taken by the first respondents is that none of the importers or their clearing agents had filed any protest for shortage with the customs authorities. No FIR had been lodged by any of the refund claimants with regard to the pilferage/theft resulting shortage of the consignment with the concerned authorities. It is not disputed that the opinion submitted by Surveyor, though that may not be binding on the Customs Officer in deciding whether the claim for refund should be settled under Section 13 or Section 23 of the Act, and it is for the Customs Officer to take an independent decision based on related documents like Port Tally Sheets/Landing Remarks Certificate and annotations given in the Tally Sheets against the packages landed. In the case of imported bulk cargo, the general practice at all the Ports is to accept the weighment certificates for each lorry load at weigh bridge in Port area for accountal of the delivered to the importers.
The Port Authorities do not issue out-turn statement. The procedure of issuing out-turn statements by the Port Authorities arises only in respect of "bulk cargo" like fertilizers, raw asbestos fibre etc., which are imported, in unpacked condition in bulk in ships in hatches/holds. Further when the goods are landed in packages, tally is conducted jointly by representatives of the Steamer Agents and the Port Authorities. Tally Sheets indicate condition of the packages at the time of landing. When the packages are being unloaded from the vessal and Tally is being conducted the importer or his Agent will not be in picture. But when the tally sheets contain certain annotation there is strong possibility of loss/damage of the contents during transportation, handling, stacking etc. However this position will not be known to the importer/agent at this stage and he will come to know about the actual condition of the packages only on verification of the Tally sheets which are made available only at a later stage. It is also important where the department is unable to establish that the shortage is due to pilferage or the ingredients of pilferage have not been directly or circumstantially established, the department cannot reject the claim and the benefit of doubt in the absence of ingredients of pilferage should go to the importer and the claim should be treated as falling under Section 23 only.
17. We do not think that we should go into minute details of the case.
We find that the inquiry officer in his report has held that the case against the applicant has not been proved. Once it is held that the charges against the applicant is not proved then the question of initiating action do not arise especially when the applicant is discharging quasi-judicial functions. It is also not disputed that while sanctioning refund, the applicant is not the person who process the same nor he is recommending authority. He only sanctioned the same on the basis of materials placed before him. That decision is only quasi-judicial function which is not a matter in dispute.
18. According to the respondents the documents relied by the applicant were not sufficient to order refund. According to them some of the survey reports were even incomplete and some of them were seriously refuted by the applicant himself. Samples of the survey reports have been placed before us. It is seen therefrom that reasons have been given for not completing the survey and endorsements were made after completing the assessment. We do not find any instance where the incomplete survey reports had been relied on for sanctioning refund.
19. In the detailed inquiry conducted the Inquiry Officer held that the charge against the applicant was not proved and it is also held that when the applicant is discharging the quasi-judicial functions, it is not proper to initiate disciplinary proceedings. We can come to the above conclusion on the basis of the judgment of the Supreme Court in V.D. Trivedi v. Union of India . The above decision was explained by the Supreme Court in Union of India and other v. K.K.Dhawan , wherein their Lordships have held in para 28 and 29 as under: 28...The officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessment may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus we conclude that the disciplinary action can be taken in the following cases: (i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) if has acted in a manner which is unbecoming of a Government servant; (iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (vi) if he had been acted actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great.
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated.
20. Both the cases were considered by their Lordships of the Supreme Court in (Zunjarrao Bhikaji Nagarkar v. Union of 40. Initiation of discipliniary proceedings against an officer cannot take place on an 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 the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellants. There is no other instance to show that in similar case the appellant invariably imposed penalty.
41. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law. e.g. in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
42. Considering whole aspects of the matter we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed.
43. Before concluding, there are two aspects of the matter which we wish to point out. These are: 1. In the counter affidavit filed by the Union of India, it has been said that the special leave petition filed by the appellant "is totally misconceived, premature and highly irresponsible." In the whole body of counter affidavit strong language has been used. Union of India is not a private litigant. Such language in the pleading should be avoided. One can be firm without being impolite.
2. There is a charge of misconduct against the Collector (Now Commissioner) of Central Excise. While disciplinary proceedings are pending against him, he is transferred to the National Academy of Customs, Excise and Narcotics to guide probationers. It is certainly a paradoxical situation that a man who is not fit to hold the post of Collector is fit enough to impart training to the probationers entering the service Best talent should be sent to the academy to teach the probationers. Posting to the academy should be considered as an honour and not punishment. Our comment is no reflection on the appellant herein as we have set aside the initiation of disciplinary proceedings against him.
44. With these observations, the appeal is allowed with costs. The order of the Central Administrative Tribunal dated August 12, 1998 and the impugned judgment dated September 7, 1998 of the High Court are set aside. Article of charge issued against the appellant is quashed.
21. We are bound by the above law declared by the Supreme Court.
Therefore, can it be said that there is a ground for initiating action against the applicant?. Considering the records of the case we find that there is no justification for initiating proceedings against the applicant. Suspicion itself is not a ground to hold that the applicant is guilty of the charges. The main reason for issuing the charge sheet seems to be that the applicant has disposed of 50 cases within 7 days or within a shorter period. The applicant has got definite answer for the same. According to him the cases which could be disposed of on the basis of the Surveyor's report are simple cases especially when the instructions in that regard are clear.
22. If we follow the above decisions as well as the authorities, it cannot be said that the applicant has conducted himself improperly or is without integrity. We also find force in the argument of the counsel for the applicant that the disciplinary authority was moved by the publicity given by the Central Vigilance Commissioner, where the applicant's name was also included as a man of improper conduct.
23. As held by the High Court of Judicature at Madras in A.M. Sankaran v. The Registrar High Court, Madras 1992 (2) L.W. 174 (to which one of us was a party-S.S. Subramani, J.) suspicion has no role to play in such matters and there should be sufficient materials to hold a person is guilty of charges.
24. The learned Counsel for the applicant also relied on a judgment of the Supreme Court in the State of Punjab and Ors. v. Ram Singh Ex-constable 6. Thus it could be seen that the word "misconduct" though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude; it must be improper or wrong behaviour unlawful behaviour; wilful in character; forbidden act; a transgression of established and definite rule of action or code of conduct but not mere error of judgment carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
25. Taking into consideration the above law, we are of the view that suspecion in the minds of the officers (respondents herein) cannot be a ground to hold that the applicant is guilty of the charges. There is no evidence to prove the guilt of the applicant. Even if he had acted in a negligent manner in not taking the permission of the superiors or the survey reports were prepared in the absence of the superior officers, that cannot be termed as misconduct. One important fact has to be noted here. The respondents have no case that in any of the assessment claims for refund the applicant has shown undue favouritism. It is also not the case of the respondents that there is any loss caused to the Government. In these circumstances the impugned order has to be set aside.
26. The impugned order is to be set aside for one more reason also.
While narrating the facts of this case, we said that the disciplinary authority did not agree with the findings of the inquiry officer and came to a different conclusion. In such cases, the procedure adopted by the respondents is not correct. The Supreme Court has held in Ram Kishan v. Union of India and Ors.
Disciplinary Authority has to give specific reasons in the show cause notice as to why he has come to the conclusion that the findings of the inquiry officer is not correct, so that it may give the delinquent officer to submit his explanation to the disciplinary authority. In this case the show cause notice issued did not satisfy the above requirement. In the decision cited above in para 10 their Lordship of the Supreme Court have held thus: 10. Higher in the ladder the officer scales in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to duty. Work culture and self-discipline augment his experience. Security of service gives fillip to accelerate assiduity to stay in line and measure up to the expected standards of efficiency by the Government employee. Thereby they ultimately aid to achieve excellence in public service. The security of service provided by Article 311 of the Constitution and the statutory rules made under proviso to Article 309 would thus assure to remove deficiency and incompetence and augment efficiency of public administration. The rights--constitutional or statutory--carry with them corollary duty to maintain efficiency, integrity and dedication to public service. Unfortunately the latter is being overlooked and neglected and the former unduly gets emphasised. The appropriate Government the authority would, therefore, need to consider the totality of the facts and circumstances appropriate in each case and would form the opinion whether compulsory retirement of a Government employee would be in the public interest. The opinion must be based on the material on record; otherwise it would amount to arbitrary or colourable exercise of power.
27. The same view was reiterated in a subsequent decision by their Lordships of the Supreme Court in Punjab National Bank and Ors. v. Kunj Behari Misra . In para 19 in that case it was held that if the Disciplinary Authority disagrees with the findings of the inquiry officer it must record the tentative reasons for such a disagreement and give it to the delinquent officer so that the delinquent officer could have an opportunity to represent before it (i.e. the disciplinary authority) record its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Inquiry Officer. Their Lordships have held in that case that it is only a compliance of the principles of natural justice, Both these decisions were taken into consideration by the Hon'ble Supreme Court in State Bank of India and Ors. v. Arvind K. Shukla 2001 (4) Supreme 586. The only question that came up for consideration before the Supreme Court was whether in a case where the disciplinary authority disagrees with the findings of the Inquiry Officer on certain articles of charges, then before it records its findings on such charges, is it duty bound to record its tentative reasons for such disagreement and give the same to the delinquent officer an opportunity to represent before it ultimately records its findings. Their Lordships have followed the earlier decisions and held that principles of natural justice ought to have been complied with.
28. On going through the facts of this case that this condition (i.e.
recording tentative reasons) has not been complied with and only a show cause notice without containing any tentative reasons was issued. From the file produced by the respondents we could not see that the disciplinary authority has recorded its reasons and the same had been communicated to the applicant. So this case goes against the decisions cited above.
29. In view of the above discussion, the impugned order is set aside and the O.A. is allowed. The deduction made in pension pursuant to the impugned order is directed to be refunded within a period of two months from today. No posts.