9911796707
TMI Blog2013 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the duty of inspection/examination of consignment presented for export from the said port. It appears that the Directorate of Revenue Intelligence (DRI) initiated an inquiry in availment of duty drawback on export of chief quality junk UPFC pipes between 1998 and 1999 by M/s. Aravali (India) Limited, Hissar which culminated in issuance of a notice to show cause dated 21st December, 2000 to the exporter. In this notice, reliance was placed on the shipping bills of said firm with regard to the subject transaction. This show cause notice was not addressed to the respondent. It is noteworthy that nothing adverse against the respondent was mentioned therein. 3. The exporter appears to have submitted a reply. After consideration of the matter, upon adjudication by the Commissioner of Customs, an order dated 2nd November, 2001 was passed. There was still nothing incriminating against the respondent. Therefore, from the Custom's point of view, investigation in the case stood completed. 4. On the 6th of August, 2003, the DRI addressed a letter to the Chief Commissioner of Central Excise, (Delhi Zone) with regard to an alleged export fraud of M/s. Aravali (India) Limited, Hissar. This c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report did not suggest a specific role of each officer in the fraudulent availment of duty drawback to enable initiation of regular departmental enquiry after obtaining first stage advice from DGOV. In view of the above, another enquiry report dated 9th August, 2007 was submitted by Shri S.N.B. Sharma, Assistant Commissioner, Export (Shed) ICD, TKD, New Delhi which was forwarded to the Central Excise (Delhi) on the 20th of August, 2007. 7. To explain as to why no disciplinary proceedings were initiated against the respondent, the petitioner has further submitted that the DRI had not provided the original or their attested copies of 219 shipping bills relating to the trasaction despite several reminders between 26th October, 2004 to 30th December, 2009 which were necessary to initiate disciplinary proceeding. 8. The Directorate General of Vigilance was requested vide a letter dated 11th February, 2010 for first stage advice. The Directorate General of Vigilance, vide letter dated 23rd April, 2010, had informed that the proposal seeking first stage advice was incomplete in the absence of original or certified copy of shipping bills. As per the petitioner, these bills were recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal shipping bills, the Commissioner of Customs had clearly stated that the copies of the shipping bills had been retained by the Custom department. The DRI had addressed a letter dated 6th August, 2003 to the Chief Commissioner of Central Excise, (Delhi Zone) referring to the investigation of the respondent which shows that as back as in 2003, the particulars of the officers against whom misconduct was alleged in the transaction in question had been identified. 13. The respondent filed CM No.354/2012 in the above writ petition seeking permission of this court to bring on record these documents. The writ petition and the application were disposed of at that stage by the court vide an order passed on 11th January, 2012. Liberty was granted to the respondents to approach the Central Administrative Tribunal by way of a review for producing the additional documents in support thereof. 14. The respondent consequently filed Review Application No.27/2012 in O.A.No.1844/2011 relying upon the documents which had been received by the aforesaid Mr. Dahiya under the R.T.I. Act and sought review of the order dated 19th December, 2011. This review petition was heard and allowed by the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 2011 was bonafide, adequately explained and deserves to be accepted. It has also been contended that no finding has been returned with regard to any prejudice resulting to the applicant in contesting the disciplinary case on account of alleged delay. The submission is that the delay in issuance of the memorandum dated 25th February, 2011 had occurred in the circumstances which were completely beyond the control of the petitioner and that the judgment of the Central Administrative Tribunal was contrary to law laid down by the Supreme Court as well as by the Punjab and Haryana High Court. These questions arise for consideration by us in this writ petition. 19. The respondent entered appearance on advance notice and submitted that the impugned orders have to be tested on the basis of the records which were before the Central Administrative Tribunal when it passed the impugned order. In this background, we permitted the respondent to place such extracts of the record of the Tribunal as had not been placed before us by the petitioners and were necessary for adjudication of the case. The same was duly filed in the present proceedings and has been considered. The writ petition was ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the involvement of the officer in the said irregularities and the investigation were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal." 24. Again in the judgment reported at 1998 (4) SCC 154 State of Andhra Pradesh v. N. Radhakishan, the Court considered the same issue and laid down the following principles:- "19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as occurred. 26. Learned counsel for the respondent has drawn our attention to the judgment dated 3rd July, 2009 passed in WP(C)No.4757/2007, Union of India v. V.K. Sareen. In this case, the petitioner had proposed to commence disciplinary action against the respondents for imposition of major penalty with regard to his functioning between 12th June, 1990 to 12th April, 1993. An Enquiry Officer was appointed on the 22nd of April, 2003 and the report of the inquiry was submitted on the 1st of July, 2005. The charge sheet and the proceedings were quashed by the Central Administrative Tribunal by an order passed on 20th of March, 2007 which order came to be questioned by way of the writ petition filed before this court. In the judgment dated 3rd July, 2009, this court had culled out the principles as follows:- "13. It is trite law that disciplinary proceedings should be conducted soon after the alleged misconduct or negligence on the part of the employee is discovered. Inordinate delay cannot be said to be fair to be Delinquent Officer and since it would also make the task of proving the charges difficult. It would also not be in interest of administration. If the delay is too long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. M.S. Bhatia is on a similar terms. 29. Mr. R.V. Sinha, learned counsel for the petitioner has urged that the Tribunal ought not to have interfered in the proceedings inasmuch as the respondent had approached it at the stage of issuance of charge sheet and that the matter had not proceeded to the stage of a final order. It is urged that the issuance of the charge sheet does not infringe the rights of a party and it is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action in his favour. 30. In this regard, reliance is also placed on the judgment reported at 2012 (11) SCC 565 Secretary Ministry of Defence v. Prabhash Chandra Mirdha. Perusal of this judgment would show that the charge memorandum dated 8th of January, 1992 was issued to the respondents on the alleged demand of bribe of Rs.37,000/- and its acceptance on 3rd August, 1991. The Supreme Court did not lay down any absolute proposition that a charge sheet cannot be ever challenged. In para 8 of the judgment, the Supreme Court has specifically noted that the law does not permit quashing of the charge sheet in a `routine manner'. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the well settled principles that no hard and fast rule can be laid on the effect of delay in concluding disciplinary proceedings or on the aspect of its impact on the delinquent. It was observed that the employee has to make out a case of prejudice. The court also noted that the question had to be considered in the facts and circumstances of the case keeping in view of the nature of the charges. 35. So far as the judgment in Chairman, LIC of India & Ors. v. A. Masilamani (Supra) is concerned, the Supreme Court in para 10.2 has held as follows:- "10.2 The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate and unexplained delay in issuance of the chargesheet on the ground that the original bills or copies thereof were not available with it is wholly specious and devoid of merit. The xerox copies had been prepared by the custom department itself. 40. The respondent points out that the petitioners have taken the plea that they needed "certified" copies which were received only on 29th June, 2010 for the first time before the Central Administrative Tribunal. For this reason as well, the reliance on the reminders to the DRI for the originals or attested copies of the shipping bills is of no avail inasmuch as the petitioner had in its possession all xerox copies which had been prepared by them from the original documents and they were at best required to certify the authenticity thereof. Therefore obtaining the certified copies of the documents was really an idle formality and wholly unnecessary in the given case. 41. Certain other actions taken by the petitioner also support the respondent. On the 4th of January, 2000, the DRI initiated an inquiry. It issued the show cause notice dated 21st December, 2000 against the exports by M/s. Aravali (India) Limited, Hissar. It contained d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20th of August, 2007, as another circumstance to explain the delay on their part. However, in our view nothing turns on this inquiry inasmuch as the petitioner had authoritatively adjudicated upon the subject matter on 2nd November, 2001 when final adjudication was effected against the exporter with regard to the transactions in questions. 47. In its communication dated 6th August, 2003, the DRI had named 23 persons including the respondent against whom departmental proceedings were suggested. 48. So far as inability to obtain copies is concerned, learned counsel for the respondent has urged that the DRI is located in the CGO complex at Lodhi Road, New Delhi and the Inland Container Deport (ICD) is located at Tughalkabad, New Delhi. The disciplinary authority of the petitioner was the Central Excise and Customs which has its office at the ITO. These premises are located within few kilometres of each other. It certainly did not have to take 13 years to reach one office from the other to obtain the certified copies, even if they could be held to be essential. We, of course, in the given circumstances, have held to the contrary. 49. Judicial precedent on the facts similar to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution initiated against the respondent was pending or from the investigation authorities. It was also noted that, in any case, the original documents could also have been inspected by the petitioners by requesting the same from the concerned Court." The insistence of the writ petitioner before us on the requirement of the original documents or certified copies thereof is therefore, misconceived and the plea set up by the respondent has to be rejected by us. 50. The file notings stated 25th September, 1999 and 27th September, 1999 also militate against acceptance of the explanation given by the petitioners. 51. So far as the delay which the petitioner had to explain in issuance of charge memo dated 25th February, 2011 is concerned, this memo was thus initiated more than thirteen years after the transaction in question; more than eleven years after completion of the custom investigation and after completion of the adjudication by the Commissioner Custom on 2nd November, 2001; more than 8 years after the 6th August, 2003 when the DRI informed the petitioner about the recommendations for departmental action against 23 officials and 7 years after the petitioner had been called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on's advice, if required. One month from the date of receipt of Commission's advice. 7 Issue of charge-sheet, if required. (i) One month from the date of receipt of Commissioner' s advice. (ii) Two months from the date of receipt of investigation report. 8 Time for submission of defence statement. Ordinarily ten days or as specified in CDA rules. 9 Consideration of defence statement. 15 (Fifteen) days. 10 Issue of final orders in minor penalty cases. Two months from the receipt of defence statement. 11 Appointment of IO/PO in major penalty cases. Immediately after receipt and consideration of defence statement. 12 Conducting departmental inquiry and submission of report. Six months from the date of appointment of IO/PO. 13 Sending a copy of the IO's report to the Charged Officer for his representation. i) Within 15 days of receipt of IO's report if any of the Articles of charge has been held as proved. ii) 15 days if all charges held as not proved. Reasons for disagreement with IO's findings to be communicated. 14 Consideration of CO's representation and forwarding IO's report to the Commission for second stage advice. One month from the date of receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the proceedings for want of original documents. The final adjudication order as well as all inquiry reports was based on the records of the petitioners. Even after obtaining the inquiry report, the respondents delayed the matter not by one or two years but by several years as set out above. 59. We find that the courts have even held that delay in initiating disciplinary proceedings could tantamount to denial of a reasonable opportunity to the charged official to defend himself and therefore be violative of the principles of natural justice. In this regard, reference may usefully be made to the pronouncement of the Kerala High Court reported at 2001 (1) SLR 518 Meera Rawther Vs. State of Kerala wherein it has been held as follows:- "3. The court also held that wherever delay is put forward as a ground for quashing the charges, the Court has to weigh all the factors, both for and against the delinquent officer and come to a conclusion which is just and proper in the circumstances. In this connection we also refer to the decision of Gujarat High Court in Mohanbhai Dungarbhai Parmar vs. Y.B. Zala and Others, 1980 (1) SLR 324 wherein the Court held that delay in initiating proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire. The petitioners permitted these eight officers to retire voluntarily from service. No disciplinary proceedings were initiated against them before they retired. It is trite that an employee against whom disciplinary proceedings were being contemplated would not be permitted to leave the organization or to voluntarily retire from service. It is apparent therefore, that the respondents themselves did not consider the matter as of any serious import affecting the discipline of the department. 65. In view of the above narration of facts, the delay in initiation of the proceedings certainly has lent room for allegations of bias, mala fide and misuse of powers against the respondent by the petitioners. In the judgment reported at 1995 (1) ILJ 679 (SC) State of Punjab v. Chaman Lal Goyal it has also been observed that when a plea of unexplained delay in initiation of disciplinary proceedings as well as prejudice to the delinquent officer is raised, the court has to weigh the facts appearing for and against the petitioners pleas and take a decision on the totality of circumstances. The court has to indulge in a process of balancing. 66. The alleged misconduct claimed to have been don ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
