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TMI Blog2011 (5) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... t, i.e., Customs, DRI, CBI, DGOV/CVC, there is no inordinate delay in issuance of charge sheet. In any case charge sheet has been issued as per procedure prescribed and on the advice of CVC. The role of Shri J.P. Singh, Deputy Commissioner is different from the role of the applicant, therefore, the OA may be dismissed. 3. We have heard both the counsel and perused the pleadings. It is seen that on the basis of some information, the DRI initiated some investigation in respect of certain exports cleared through the port of Inland Container Depot, Tughlakabad in November-December, 1998. After the investigations were over, show cause notice was issued to the applicant on 23.12.1999 along with other officers under the Provisions of Customs Act, 1962. Applicant gave his reply. The matter was adjudicated by the then Commissioner of Customs, Inland Container Depot, Tughlakabad vide Order-in-Original No. AKR/CC/ICD/TKD/43/2003 of the date wherein finding no evidence of any connivance or misdemeanor on the part of the applicant, the Commissioner dropped the proceedings against the applicant but it was observed as follows:- As regards the role of Shri Joseph Kouk, Superintendent in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that the charge cannot be proved without examining the witnesses and giving the applicant opportunity to examine them and by only considering their previous depositions. Fourth, the charges against the applicant relate to the acts done in 1998 and the memorandum of charge has been served on the applicant after an inordinate delay of eight years in May, 2006. No explanation for the delay has been given by the Respondents. The delay has caused serious prejudice to the applicant. 5. After considering the rival contentions, this Tribunal observed as follows-:- 15. The Honourable Supreme Court has considered the issue about the delay in issuing the chargesheet after considerable delay in a catena of cases. In State of Madhya Padesh Vs. Bani Singh and Another, (1991) 16 ATC 514, while considering the order of the Tribunal quashing the chargesheet because of delay of 12 years in issuing the chargesheet, the Honourable Supreme Court held thus: 4. The appeal against the order dt. 16-12-1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. (emphasis added) The Honourable Supreme Court upheld the order of the Tribunal quashing the chargesheet on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. (emphasis added) In Meera Rawther Vs. State of Kerala, 2001 (1) SLR 518, the Honourale High Court of Kerala held thus: 13. 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 proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day-to-day diary in which every small matter is meticulously recorded in ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee with the learned counsel for the Respondents that the statements recorded under Section 108 of the Customs Act, 1962 can be taken into evidence in the departmental enquiry without giving the Applicant any opportunity to cross-examine them. It would militate against the ratio laid down by the Honourable Supreme Court in Kuldeep Singh Vs. Commissioner of Police Ors., (1992) 2 SCC 10; Central Bank of India Ltd. Vs. Prakash Chand Jain, AIR 1969 SC 983; and Ministry of Finance and Anr. Vs. S.B. Ramesh, SLJ 1998 (2) SC 67. 19. In Kuldeep Singh (cited supra) Honourable Supreme Court has held as follows: 31. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means Hearing in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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