2016 (4) TMI 773 - HC - Central Excise

Imposition of penalty - Assessing and granting wrong refunds and then not seeking its repayment and/or not recovering refund - Held that - an officer, who has been conferred with statutory jurisdiction to adjudicate matters, acts in a quasi-judicial capacity. Unless it can be shown that the decision was taken malafide or with ulterior motive, for a wrong decision taken there cannot be disciplinary proceedings as it is not a misconduct. Here, there is no allegation of malafide, ulterior motive or such like. It is not in dispute that excess duty had been deposited and refund was due. The Department has not raised the plea that no refund at all was due and the duty was rightly deposited. It is not the case of Department that refunds were ordered when refund were not due and that too with ulterior motive. That being so, for orders passed in quasi-judicial functions by statutory authorities, disciplinary proceeding for misconduct cannot be initiated, much less officer penalized. The petitioner is again correct in holding that he was not negligent in not pursuing the matter of recovery in spite of audit objection. As the assessments were in between 19.05.1993 to 22.09.1993 and the last date within which demands for recovery of excess refund could be made, in terms of Section 11-A of the Act being 18.11.1992 to 21.03.1994, the audit objection having been made only on 05.05.1994 was clearly after the six months statutory period prescribed. Thus, to say that petitioner ought to have taken proper steps for recovery is a far cry, for Section 11-A of the Act prohibits any action after six months. Petitioner cannot be alleged to have been negligent in that respect. Also the petitioner should not have allowed refund to the seller/ manufacturer. Refund if at all due was legally due to the buyer who had paid the duty to the manufacturer for depositing to the Department. The view of the U.P.S.C. was correct but we cannot take note of this because there was no such charge against the petitioner in the departmental proceedings. If this was the opinion of the U.P.S.C. after the enquiry had concluded, this cannot form basis of any action. Therefore, the impugned order of the disciplinary authority as also the order of the Tribunal not interfering with the order of punishment, 30% reduction of pension for 5 years is set aside and any deduction that has already been made on this count has to be refunded to the petitioner. - Decided in favour of petitioner

Summary

Issues:
- Disciplinary proceedings against an officer acting in a quasi-judicial capacity
- Allegations of negligence in granting wrong refunds
- Observations by the U.P.S.C. regarding refund recipient

Disciplinary proceedings against an officer acting in a quasi-judicial capacity:
The writ petition challenged an order of the Central Administrative Tribunal regarding disciplinary proceedings initiated against a Range Officer in the Central Excise Department. The Enquiry Officer found that the charges against the officer could not be proved and that the excise duty deposited was in excess and liable to be refunded. The Department sought advice from the U.P.S.C., which concurred with the Enquiry Officer's findings but noted negligence on the officer's part. The Department imposed a penalty of withholding 30% pension for 5 years. The High Court held that unless there was malafide or ulterior motive, disciplinary proceedings could not be initiated against an officer acting in a quasi-judicial capacity. As there was no allegation of malafide, the disciplinary action was deemed improper.

Allegations of negligence in granting wrong refunds:
The petitioner argued that the disciplinary authority erred in finding negligence on their part for not pursuing recovery despite an audit objection. The High Court agreed with the petitioner, noting that the audit objection was raised after the statutory limitation period of six months as per Section 11-A of the Central Excise Act. Therefore, the petitioner could not be faulted for not taking action within the prescribed time frame. The Court held that the disciplinary action based on alleged negligence was unwarranted.

Observations by the U.P.S.C. regarding refund recipient:
The U.P.S.C. observed that the officer should have refunded the excess amount to the buyer instead of the seller/manufacturer. However, the High Court found that since this observation was made after the conclusion of the enquiry and was not a part of the original charges, it could not be the basis for any disciplinary action. The Court emphasized that charges against an officer must be specific and cannot be based on post-enquiry observations. Consequently, the High Court set aside the disciplinary authority's order and directed the refund of any deducted pension amount to the petitioner without delay.