Union of India (Uoi), Rep. by the Secretary to Government of India, Central Board of Excise and Customs, Ministry of Finance, Department of Revenue and anr. Vs. Ravindra Kumar and anr. - Court Judgment

Excerpt:
- - during the course of examination it was detected that poor quality of garments (some of the goods were old and used;orderp. sathasivam, j.1. by consent of both parties, the main writ petition itself is taken up for disposal.2. aggrieved by the order of the central administrative tribunal, chennai bench dated 22.07.2004 made in o.a.no. 1081 of 2003, central board of excise and customs, ministry of finance, department of revenue, new delhi and the commissioner of customs, chennai-1, have preferred the above writ petition to quash the said order on various grounds.3. the first respondent herein, namely, ravindrakumar, an appraiser in custom house, chennai-1, challenged the cancellation of his promotion order dated 13.12.2002 before the central administrative tribunal-second respondent herein in o.a.no. 1081 of 2003. the tribunal, by its order dated 22.7.2004, allowed the said original application by quashing the impugned order dated 13.12.2002 and directed the writ petitioners to implement the order no. 206/02 dated 10.12.2002 and also directed them to consider the service of the first respondent herein as assistant commissioner of customs and central excise on ad hoc basis from 16.12.2002. aggrieved by the said order, the present writ petition is preferred.4. the brief facts which are required for the disposal of the above writ petition alone are stated hereunder:k. ravindrakumar, first respondent herein joined the service on 10.7.1992 as an appraiser. on 13.4.1998, he was transferred from chennai custom house to custom house, jaipur. during 1998, he allowed the export of consignments of over invoiced, low quality garments in the name of m/s. glowbus office equipments (p) limited involving duty drawback. ten shipping bills from s.no. 000013 to 000022 dated 3.9.1998 were filed by c.m. chauhan in the name of m/s. glowbus office equipments (p) ltd., at icd, udaipur before the first respondent, falsely showing the export of readymade garments with an exorbitant value of rs. 2,71,14,300 being exported to m/s. m. trade middle east trading, dubai, u.a.e., with dishonest and fraudulent intention to claim and receive duty drawback amounting to rs. 46,09,431.00. the above shipping bills were entertained by the first respondent for further processing and he put his signature dated 3.9.1998 on each shipping bill referred to above while making entry in the export register. during the course of examination it was detected that poor quality of garments (some of the goods were old and used; most of the clothes were unfit for human wearing and also not fit for export) by highly over invoicing were being exported, and he unauthorisedly allowed the export. in the export documents, the cost of each garment has been shown as about rs. 500, whereas as per the opinion of experts the cost of each garment ranged between 'no commercial value to rs. 40 per piece'; total cost has been shown as rs. 2,71,14,300, whereas according to the experts, the total cost would not exceed rs. 2,28,350. this fraudulent export involved duty drawback amounting to rs. 46,09,431 in the name of m/s. glowbus office equipments (p) ltd. the materials show that the first respondent was constantly in touch with the other accused persons. there was neither export order, nor lc was opened and these were ignored by the first respondent while allowing export. first information report was registered against him and others on 22.2.1999 by cbi. he was transferred back to chennai in july, 1999. the first respondent was suspended on 4.8.1999 by the commissioner of customs, chennai. due to procedural delay in filing charge sheet by cbi, the suspension order of the first respondent was revoked on 12.7.2000.5. the sanction for prosecution against the first respondent was accorded by the commissioner of customs, chennai on 17.6.2002. the charge sheet against the first respondent and others was filed on 19.8.2002 in the court of special judge, cbi cases, jodhpur (rajasthan). on 4.2.2003, a charge memo dated 21.1.2003 for initiation of disciplinary proceedings was served on the first respondent. on 17.3.2003, he sent a reply, requesting to postpone the disciplinary proceedings till the criminal proceeding is completed. an enquiry officer was appointed by order dated 25.12.2003 and preliminary enquiry was held on 16.2.2004 and adjourned thereafter. from 3.4.2004 to 8.6.2004, proceeding could not be conducted, since the enquiry officer was posted as election observer.6. in the meanwhile, the deputy secretary to government of india, department of revenue, central board of excise and customs, issued promotion order no. 206/2002 dated 10.12.2002 on ad hoc basis for 171 persons including the first respondent to officiate in the grade of assistant commissioner of customs and excise. however, immediately the second petitioner herein was informed about the prosecution pending against the first respondent and also about the charge sheet filed by cbi against the first respondent. hence the first respondent was not relieved to go to the new place of posting on promotion, since he was not eligible. since the charge against the first respondent was grave enough, the order of promotion was cancelled on 13.12.2002. since the order dated 10.12.2002 is a self explanatory one, no notice or personal hearing was necessary and hence, the ad hoc promotion was cancelled. the order dated 13.12.2002, cancelling his promotion was challenged in o.a.no. 1081 of 2003. the tribunal, by the order under challenge, after holding that the impugned order is not a speaking order and no reasoning is assigned, quashed the same and issued direction to the petitioners herein to implement their own order no. 206/2002 dated 10.12.2002 and also directed them to consider the service of the applicant as assistant commissioner of central excise on ad hoc basis from 16.12.2002. questioning the same, the department has filed the above writ petition.7. heard mr. v.t. gopalan, learned additional solicitor general for the petitioners and mr. r. thiyagarajan, learned senior counsel for the first respondent.8. the only point for consideration in this writ petition is, whether the order of the central administrative tribunal dated 22.7.2004 quashing the order dated 13.12.2002 only on the ground that the same is not a speaking order, without assigning any reason violates the principles of natural justice, since no notice and personal hearing was afforded to the first respondent ?9. inasmuch as we have already referred to the factual details in the earlier part of our order, there is no need to refer the same once again. we are concerned with two orders, namely, office order no. 206/2002 dated 10.12.2002 and office order no. 207/2002 dated 13.12.2002 of the government of india, ministry of finance and government affairs, department of revenue, central board of excise and customs. it is not in dispute that in the order dated 10.12.2002, the officers in the grade of custom appraisers, superintendents of customs and superintendents of central excise, whose names mentioned in annexure i, ii and iii respectively were promoted on purely ad hoc basis to officiate in the grade of assistant commissioner of customs and central excise in the pay scale of rs. 8000-275-13500 with effect from the date they assume charge of the higher post and until further orders. para 2 of the said order specifically states that the promotion to the grade of assistant commissioner of customs and central excise is made purely on ad hoc basis for a limited period of six months. it further states that the above promotion does not confer on the officers so promoted any right to claim continued officiation in the grade of assistant commissioner and the period of such service will not count for seniority or as qualifying service for further promotions. in para 3 also it is specifically stated, 'however the concerned commissionerates should ensure that no officer in the promotion list is relieved if he is under suspension or facing any charge sheet or prosecution and report this fact to the board immediately. ...' serial no. 161 in annexure i of the said order relates to the first respondent herein.10. by the second office order no. 207/2002 dated 13.12.2002, the very same department issued posting/transfer of the officers mentioned in the said annexure. in the said order, in clause (6) it is stated, 'the promotion and posting orders of shri. a. kannappan, shri. r.b. balani and shri ravindrakumar (d.o.b. 10.12.1964) may be treated as cancelled'. this order was challenged in o.a.no. 1081 of 2003 by the first respondent herein. the tribunal, accepting the case of the applicant therein, by applying the principles laid down in the case of state of andhra pradesh v. n. radhakrishnan, , holding that the department/officers have not followed the procedure while passing the order dated 13.12.2002, cancelling the order of promotion in respect of three persons' including the applicant therein, allowed his application and set aside the order of cancellation dated 13.12.2002.11. mr. v.t. gopalan, learned additional solicitor general, would submit that the tribunal has misapplied the decision in radhakrishnan's case, and inasmuch as the charge sheet in criminal case has been filed even on 19.8.2002, there is no delay in the prosecution; accordingly, the tribunal is not correct in setting aside the order of cancellation by misconstruing the above decision. by relying on the case of aligarh muslim university v. mansoor ali khan, , he contended that in the light of the conditions imposed in the order of adhoc promotion dated 10.12.2002 (vide para 3 of the said order), there is no need to issue a notice or afford personal hearing as observed by the tribunal.12. on the other hand, mr. r. thiayagarajan, learned senior counsel for the first respondent after taking us through various correspondence and conclusion of the department heads would submit that in the light of the conclusion of the tribunal, namely that there, is no material against the first respondent, the cancellation of promotion order dated 13.12.2002, without assigning any reason and affording opportunity cannot be sustained.13. the procedure for ad hoc promotion as per the service rules applicable to the first respondent is as follows:'procedure for ad hoc promotion:17.8.1 in spite of the six monthly review referred to in para.17.7.1 above, there may be some cases where the disciplinary case/criminal prosecution against the government servant are not concluded even after the expiry of two years from the date of the meeting of the first dpc, which kept its findings in respect of the government servant in a sealed cover. in such a situation the appointing authority may review the case of the government servant, provided he is not under suspension, to consider the desirability of giving him ad hoc promotion keeping in view the following aspects:(a) whether the promotion of the officer will be against public interest;(b) whether the charges are grave enough to warrant continued denial of promotion;(c) whether there is no likelihood of the case coming to a conclusion in the near future;(d) whether the delay in the finalisation of proceedings, departmental or in a court of law, is not directly or indirectly attributable to the government servant concerned; and(e) whether there is any likelihood of misuse of official position which the government servant may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.the appointing authority should also consult the central bureau of investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the bureau......'14. in the light of the above procedure, we have to see the promotion order (vide office

Judgment:
ORDER

P. Sathasivam, J.

1. By consent of both parties, the main writ petition itself is taken up for disposal.

2. Aggrieved by the order of the Central Administrative Tribunal, Chennai Bench dated 22.07.2004 made in O.A.No. 1081 of 2003, Central Board of Excise and Customs, Ministry of Finance, Department of Revenue, New Delhi and the Commissioner of Customs, Chennai-1, have preferred the above writ petition to quash the said order on various grounds.

3. The first respondent herein, namely, Ravindrakumar, an Appraiser in Custom House, Chennai-1, challenged the cancellation of his promotion order dated 13.12.2002 before the Central Administrative Tribunal-second respondent herein in O.A.No. 1081 of 2003. The Tribunal, by its order dated 22.7.2004, allowed the said Original Application by quashing the impugned order dated 13.12.2002 and directed the writ petitioners to implement the order No. 206/02 dated 10.12.2002 and also directed them to consider the service of the first respondent herein as Assistant Commissioner of Customs and Central Excise on ad hoc basis from 16.12.2002. Aggrieved by the said order, the present writ petition is preferred.

4. The brief facts which are required for the disposal of the above writ petition alone are stated hereunder:

K. Ravindrakumar, first respondent herein joined the service on 10.7.1992 as an Appraiser. On 13.4.1998, he was transferred from Chennai Custom House to Custom House, Jaipur. During 1998, he allowed the export of consignments of over invoiced, low quality garments in the name of M/s. Glowbus Office Equipments (P) Limited involving duty drawback. Ten shipping bills from S.No. 000013 to 000022 dated 3.9.1998 were filed by C.M. Chauhan in the name of M/s. Glowbus Office Equipments (P) Ltd., at ICD, Udaipur before the first respondent, falsely showing the export of readymade garments with an exorbitant value of Rs. 2,71,14,300 being exported to M/s. M. Trade Middle East Trading, Dubai, U.A.E., with dishonest and fraudulent intention to claim and receive duty drawback amounting to Rs. 46,09,431.00. The above shipping bills were entertained by the first respondent for further processing and he put his signature dated 3.9.1998 on each shipping bill referred to above while making entry in the Export Register. During the course of examination it was detected that poor quality of garments (some of the goods were old and used; most of the clothes were unfit for human wearing and also not fit for export) by highly over invoicing were being exported, and he unauthorisedly allowed the export. In the export documents, the cost of each garment has been shown as about Rs. 500, whereas as per the opinion of experts the cost of each garment ranged between 'no commercial value to Rs. 40 per piece'; total cost has been shown as Rs. 2,71,14,300, whereas according to the experts, the total cost would not exceed Rs. 2,28,350. This fraudulent export involved duty drawback amounting to Rs. 46,09,431 in the name of M/s. Glowbus Office Equipments (P) Ltd. The materials show that the first respondent was constantly in touch with the other accused persons. There was neither export order, nor LC was opened and these were ignored by the first respondent while allowing export. First Information Report was registered against him and others on 22.2.1999 by CBI. He was transferred back to Chennai in July, 1999. The first respondent was suspended on 4.8.1999 by the Commissioner of Customs, Chennai. Due to procedural delay in filing charge sheet by CBI, the suspension order of the first respondent was revoked on 12.7.2000.

5. The sanction for prosecution against the first respondent was accorded by the Commissioner of Customs, Chennai on 17.6.2002. The charge sheet against the first respondent and others was filed on 19.8.2002 in the Court of Special Judge, CBI cases, Jodhpur (Rajasthan). On 4.2.2003, a charge memo dated 21.1.2003 for initiation of disciplinary proceedings was served on the first respondent. On 17.3.2003, he sent a reply, requesting to postpone the disciplinary proceedings till the criminal proceeding is completed. An Enquiry Officer was appointed by order dated 25.12.2003 and preliminary enquiry was held on 16.2.2004 and adjourned thereafter. From 3.4.2004 to 8.6.2004, proceeding could not be conducted, since the Enquiry Officer was posted as Election Observer.

6. In the meanwhile, the Deputy Secretary to Government of India, Department of Revenue, Central Board of Excise and Customs, issued promotion order No. 206/2002 dated 10.12.2002 on ad hoc basis for 171 persons including the first respondent to officiate in the grade of Assistant Commissioner of Customs and Excise. However, immediately the second petitioner herein was informed about the prosecution pending against the first respondent and also about the charge sheet filed by CBI against the first respondent. Hence the first respondent was not relieved to go to the new place of posting on promotion, since he was not eligible. Since the charge against the first respondent was grave enough, the order of promotion was cancelled on 13.12.2002. Since the order dated 10.12.2002 is a self explanatory one, no notice or personal hearing was necessary and hence, the ad hoc promotion was cancelled. The order dated 13.12.2002, cancelling his promotion was challenged in O.A.No. 1081 of 2003. The Tribunal, by the order under challenge, after holding that the impugned order is not a speaking order and no reasoning is assigned, quashed the same and issued direction to the petitioners herein to implement their own order No. 206/2002 dated 10.12.2002 and also directed them to consider the service of the applicant as Assistant Commissioner of Central Excise on ad hoc basis from 16.12.2002. Questioning the same, the Department has filed the above writ petition.

7. Heard Mr. V.T. Gopalan, learned Additional Solicitor General for the petitioners and Mr. R. Thiyagarajan, learned Senior Counsel for the first respondent.

8. The only point for consideration in this writ petition is, whether the order of the Central Administrative Tribunal dated 22.7.2004 quashing the order dated 13.12.2002 only on the ground that the same is not a speaking order, without assigning any reason violates the principles of natural justice, since no notice and personal hearing was afforded to the first respondent ?

9. Inasmuch as we have already referred to the factual details in the earlier part of our order, there is no need to refer the same once again. We are concerned with two orders, namely, Office Order No. 206/2002 dated 10.12.2002 and Office Order No. 207/2002 dated 13.12.2002 of the Government of India, Ministry of Finance and Government Affairs, Department of Revenue, Central Board of Excise and Customs. It is not in dispute that in the order dated 10.12.2002, the Officers in the grade of Custom Appraisers, Superintendents of Customs and Superintendents of Central Excise, whose names mentioned in Annexure I, II and III respectively were promoted on purely ad hoc basis to officiate in the grade of Assistant Commissioner of Customs and Central Excise in the pay scale of Rs. 8000-275-13500 with effect from the date they assume charge of the higher post and until further orders. Para 2 of the said order specifically states that the promotion to the grade of Assistant Commissioner of Customs and Central Excise is made purely on ad hoc basis for a limited period of six months. It further states that the above promotion does not confer on the officers so promoted any right to claim continued officiation in the grade of Assistant Commissioner and the period of such service will not count for seniority or as qualifying service for further promotions. In para 3 also it is specifically stated, 'However the concerned Commissionerates should ensure that no Officer in the promotion list is relieved if he is under suspension or facing any charge sheet or prosecution and report this fact to the Board immediately. ...' Serial No. 161 in Annexure I of the said order relates to the first respondent herein.

10. By the second Office Order No. 207/2002 dated 13.12.2002, the very same Department issued posting/transfer of the Officers mentioned in the said Annexure. In the said order, in Clause (6) it is stated, 'The promotion and posting orders of Shri. A. Kannappan, Shri. R.B. Balani and Shri Ravindrakumar (D.O.B. 10.12.1964) may be treated as cancelled'. This order was challenged in O.A.No. 1081 of 2003 by the first respondent herein. The Tribunal, accepting the case of the applicant therein, by applying the principles laid down in the case of State of Andhra Pradesh v. N. Radhakrishnan, , holding that the Department/Officers have not followed the procedure while passing the order dated 13.12.2002, cancelling the order of promotion in respect of three persons' including the applicant therein, allowed his application and set aside the order of cancellation dated 13.12.2002.

11. Mr. V.T. Gopalan, learned Additional Solicitor General, would submit that the Tribunal has misapplied the decision in Radhakrishnan's case, and inasmuch as the charge sheet in criminal case has been filed even on 19.8.2002, there is no delay in the prosecution; accordingly, the Tribunal is not correct in setting aside the order of cancellation by misconstruing the above decision. By relying on the case of Aligarh Muslim University v. Mansoor Ali Khan, , he contended that in the light of the conditions imposed in the order of adhoc promotion dated 10.12.2002 (vide para 3 of the said order), there is no need to issue a notice or afford personal hearing as observed by the Tribunal.

12. On the other hand, Mr. R. Thiayagarajan, learned Senior Counsel for the first respondent after taking us through various correspondence and conclusion of the Department Heads would submit that in the light of the conclusion of the Tribunal, namely that there, is no material against the first respondent, the cancellation of promotion order dated 13.12.2002, without assigning any reason and affording opportunity cannot be sustained.

13. The procedure for ad hoc promotion as per the Service Rules applicable to the first respondent is as follows:

'Procedure for ad hoc promotion:

17.8.1 In spite of the six monthly review referred to in para.17.7.1 above, there may be some cases where the disciplinary case/criminal prosecution against the Government servant are not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept its findings in respect of the Government servant in a sealed cover. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad hoc promotion keeping in view the following aspects:

(a) Whether the promotion of the officer will be against public interest;

(b) Whether the charges are grave enough to warrant continued denial of promotion;

(c) Whether there is no likelihood of the case coming to a conclusion in the near future;

(d) Whether the delay in the finalisation of proceedings, departmental or in a Court of Law, is not directly or indirectly attributable to the Government servant concerned; and

(e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.

The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau......'

14. In the light of the above procedure, we have to see the promotion order (vide OFFICE