2019 (4) TMI 1279 - HC - Indian Laws

Punishment of Compulsory Retirement - conduct led to conviction - criminal charge under Customs Act, 1962 - case of petitioner is that what he insisted upon is production of original documents which could not be produced by Presenting Officer - HELD THAT - The documents relied in support of charges were supplied to petitioner but what he insisted upon is production of original documents which could not be produced by Presenting Officer since original documents belong to Custom Department and Presenting Officer had no access to them - in a departmental proceeding when copies of documents are supplied and it is not shown that said copies are manufactured or tempered, mere fact that original documents are not made available, will not vitiate proceedings as non production of original documents will not make copies of such documents inadmissible in departmental inquiry since Evidence Act, 1872 is not applicable. It cannot be said, in the entirety of facts, that inquiry proceeding in the present case is vitiated in law for non supply or non production of original documents in oral inquiry. Imposition of penalty upon petitioner - HELD THAT - The factum of carrying of contraband foreign goods by petitioner causing imposition of penalty upon him is a proven fact. Mere oral evidence produced before Inquiry Officer could not have been treated to be a discharge of burden by petitioner. In any case, in assessment of evidence, it is upon Inquiry Officer to believe one evidence and discard another and unless wholly inadmissible evidence has been accepted or there is some otherwise illegality in departmental inquiry, this Court in judicial review would not sit in appeal over the manner in which evidence has been assessed by disciplinary authority. Here is a case where petitioner has been penalized by disciplinary authority by imposing punishment of compulsory retirement on a charge which has not been proved at all since there was no evidence to prove misconduct of petitioner and, therefore, punishment imposed upon petitioner is patently illegal, cannot be sustained. It is true that in departmental inquiry when a person is punished this Court does not enter into judicial review by assessing evidence like appellate authority but where a charge is levelled and incumbent held guilty of misconduct without adducing any evidence, such order of punishment cannot be sustained. The impugned order of punishment and appellate order cannot be sustained - petition allowed.

Summary

Issues Involved:
1. Non-supply of original documents and their verification.
2. Credibility of defense witnesses.
3. Whether penalty under Customs Act, 1962 amounts to "conviction" of a criminal charge.
4. Legality of the disciplinary proceedings and inquiry.
5. Whether the charge against the petitioner was proven.
6. Tribunal's consideration of evidence and legal principles.

Detailed Analysis:

1. Non-supply of original documents and their verification:
The petitioner argued that original documents were not produced before the Inquiry Officer, and the copies supplied were not verified or certified. The court found that copies of documents were indeed supplied to the petitioner, and the demand for original documents was unreasonable as they were not in the Presenting Officer's control. The court held that non-production of original documents did not vitiate the proceedings since the Evidence Act, 1872 does not apply to departmental inquiries. The court concluded that the inquiry was not vitiated due to non-supply or non-production of original documents.

2. Credibility of defense witnesses:
The petitioner’s defense witnesses were disbelieved by the Inquiry Officer, who relied on the orders of the Customs Department. The court noted that the Inquiry Officer has the discretion to assess evidence, and unless there is illegality or acceptance of wholly inadmissible evidence, the court would not interfere. The court found no fault in the Inquiry Officer's assessment and dismissed the petitioner's claim on this issue.

3. Whether penalty under Customs Act, 1962 amounts to "conviction" of a criminal charge:
The petitioner contended that the penalty under the Customs Act does not amount to a criminal conviction. The court observed that although the initial memorandum proposed punishment based on "conduct led to conviction," a regular departmental inquiry was subsequently conducted. The court held that the conduct of carrying contraband goods constituted misconduct under Rule 3 of the Central Civil Services (Conduct) Rules, 1964, and the argument regarding "conviction" was irrelevant since a regular inquiry was held.

4. Legality of the disciplinary proceedings and inquiry:
The petitioner argued that the disciplinary authority improperly remanded the matter for further inquiry, effectively conducting a de novo inquiry. The court agreed that the disciplinary authority's reasons for remanding the matter were irrelevant and that the procedure was illegal. However, since the second inquiry report also exonerated the petitioner and the disciplinary authority assessed the evidence independently, the court found no prejudice against the petitioner and upheld the disciplinary authority's actions.

5. Whether the charge against the petitioner was proven:
The court emphasized that the orders from the Customs Department were treated as conclusive evidence without any corroboration. The court held that mere imposition of a penalty under the Customs Act does not automatically constitute misconduct under Rule 3 of the Central Civil Services (Conduct) Rules, 1964. The court found that the disciplinary authority failed to adduce evidence to prove the alleged misconduct beyond the adjudication orders. Therefore, the court concluded that the charge against the petitioner was not proven.

6. Tribunal's consideration of evidence and legal principles:
The court criticized the Tribunal for failing to consider the lack of evidence proving the petitioner's misconduct. The court reiterated that in disciplinary proceedings, mere suspicion should not replace proof, and the principle of not punishing the innocent applies equally to disciplinary inquiries. The court found that the Tribunal erred in law by not addressing the core issue of the absence of evidence.

Conclusion:
The writ petition was allowed, quashing the punishment order dated 02.04.1991, the appellate order dated 14.08.1992, and the Tribunal's judgment dated 10.11.2000. The petitioner was entitled to all consequential benefits.