Judgment:
GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. M.A. No. 152/2012 in O.A. No. 296/2011 is filed to condone the delay of 29 days in filing M.A. No. 153/2012 for extension of time to implement the order of this Tribunal dated 21.11.2011 in O.A. No. 296/2011.
2. O.A. No. 296/2011 was disposed of as under:
"9. It is not clear whether the respondents succeeded in supplying the applicant the documents sought by him. In case that is not done, within 21 days of receipt of a copy of this order, the respondents shall supply the applicant with documents as per rule, failing which the proceedings initiated by the charge memo dated 28.02.2011 shall stand dropped. In case the documents are supplied, the applicant shall file his reply within 21 days from the date of receipt of a copy of this order. On receipt of the same, the respondents shall decide within next fortnight either to drop the proceedings or to go ahead with an enquiry. If they decide to hold an enquiry, it shall be completed and further action as per rule shall be taken as early as possible, at any rate within 4 months of receipt of the reply from the applicant, failing which the enquiry stands dropped. If necessary, the enquiry should be conducted on a day to day basis. The applicant should co- operate with the respondents to expedite the enquiry, if any. Ordered accordingly.
10. The O.A. is allowed as above. No order as to costs."
3. It was received by the 3rd miscellaneous applicant on 24.11.2011. Hence the documents sought by the miscellaneous respondent were to be supplied to him within 21 days from 24.11.2011. M.A. No. 152/2012 should have filed on or before 13.01.2012. The delay of 29 days in filing the M.A. No. 153/2012 is condoned for the reasons stated by the 3rd miscellaneous applicant in the M.A.
4. M.A. No. 153/2012 is filed for extension of time for providing the applicant in O.A. No. 296/2011 certain documents in connection with a departmental enquiry against him and for a direction to him to accept the documents and to co-operate to expedite the enquiry. The order of this Tribunal dated 21.11.2011 in O.A. No. 296/2011 was forwarded to the Central Board of Excise and Customs (CBEC), Ministry of Finance, new Delhi, for further action in the matter. As no reply was received, the CBEC was reminded on 27.12.2011. Now the Chief Vigilance Officer in the Ministry of Finance, CBEC, New Delhi, vide letter dated 17.01.2012 has requested to file miscellaneous application for seeking extension of time for 2 months for providing the miscellaneous respondent with the documents as the same was not readily available with the CBEC, New Delhi.
5. Learned counsel for the miscellaneous respondent objected to the extension of time sought by the 3rd miscellaneous applicant. He has submitted that during the pendency of the M.A, the 3rd miscellaneous applicant tried to handover the documents sought by him, but he refused to accept the same as the documents were not supplied to him within the time limit stipulated by this Tribunal in the order dated 21.11.2011 in O.A. No. 296/2011. The proceedings initiated by the charge memo dated 28.02.2011 stood dropped.
6. Heard Mr. George Joseph, ACGSC, learned counsel for the miscellaneous applicants and Mr. Shafik M.A, learned counsel for the miscellaneous respondent and perused the records.
7. We have carefully considered the rival contentions of the parties. The sealed cover procedure was adopted when the case of the miscellaneous respondent was considered for promotion in 2008-09. He had filed O.A. No. 905/2010 challenging the charge memo dated 18.06.2009. The O.A. was disposed of with a direction to the respondents therein to take a decision on the explanation submitted by the applicant and if they are not satisfied with the explanation, proceed with the enquiry. The whole enquiry shall be completed on or before 31.03.2011 failing which further proceedings shall stand dropped. The same was under challenge before the Hon'ble High Court in OP (CAT) 626/2011. It was dismissed as per the judgment dated 24.05.2011. Thus the order has worked itself out and the charges leveled against the original applicant as per the memo dated 18.06.2009 stood dropped. The order dated 21.11.2011 in O.A. No. 296/2011 also has worked itself out as the documents sought by the miscellaneous respondent were not supplied to him within the time limit stipulated by this Tribunal in O.A. No. 296/2011. the miscellaneous applicants have not responded to the submission of the miscellaneous respondent that they are employing double standard as those who have committed the same alleged misconduct being let off with warning while the department has proceeded against him with malafide intention to deny his promotion. The miscellaneous applicants have admitted that one of the documents was mistakenly included in the list of documents and was not supplied to the miscellaneous respondent. After getting the written statement of defence on 24.08.2009 relating to the departmental enquiry in respect of countersigning undervaluation of certain goods in the year 2006, the miscellaneous applicants did not take any action for a long time and the charged sheet stood dropped on 31.03.2011 as per the order of this Tribunal in O.A. No. 905/2010. Anticipating their inability to complete the said proceedings before 31.03.2011, the miscellaneous applicants issued charge sheet dated 28.02.2011 to the miscellaneous respondent for a similar undervaluation that happened in 2005-06, i.e. Earlier than the incident for which he was charge-sheeted on 18.06.2009. The net result is that the original applicant had to work under his juniors and retired without promotion on adopting the sealed cover procedure. Having regard to the totality of circumstances and facts of the case, we are of the considered view that justice had not been given to the miscellaneous respondent. His stand that the order of this Tribunal worked itself out and on that ground he refused to accept the documents offered to him beyond the time stipulated by this Tribunal is indeed, tenable. It would be injustice if the miscellaneous applicants are given extension of time to the prejudice of the miscellaneous respondent. Therefore, the M.A. No. 153/2012 in O.A. No. 296/2011 is dismissed.
8. As observed in the order dated 21.11.2011, the miscellaneous applicants, in the interest of justice and fair play, should grant the miscellaneous respondent his promotion, if found eligible, and consequential benefits as per rules without further loss of time.