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TMI Blog2019 (4) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he preferred appeal which is pending. Further he said that the said penalty does not come within the purview of conviction of a criminal offence. 4. Thereafter another memorandum dated 20.12.1983 was issued cancelling office memorandum dated 12.09.1981. It is stated therein that Respondent-2, i.e., Disciplinary Authority proposes to hold an inquiry as per procedure prescribed under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as Rules, 1965 ). The said memorandum appended with Statement of Article of Charge read as under: That the said Shri M.A. Khan while functioning as a civilian clerk in COD Kanpur during the year 1978 was arrested on 22 Mar 78 by the Custom Authority under section 104 of Customs Act 1962 as he was found carrying contraband goods from Nepal with his other associates . Later on the said customs case against Shri MA Khan had been adjudicated and a personal penalty of ₹ 10000/- was imposed on him under customs act 1962. The penalty was subsequently reduced to ₹ 5000/- by the Member of Central Board of Excise and Customs New Delhi and subject to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t documents supplied by the delinquent official were not attested by any officer as a certified true copies. In this connection, refer to para 14(b), 16, 19 and 21 of Don'ts of Do's and Don'ts pamphlet . (b) the Inquiry Officer, permitted the Assisting Officer to record the false allegation against disciplinary authority in contravention to oral inquiry proceedings. (c) the Inquiry Officer permitted Assisting Officer to submit extraneous matters other than the charge framed against the accused Govt. Servant. (d) the Inquiry Officer failed to give definite findings on the Article of Charges but, discussed various extraneous matters other than the charges. (e) the Inquiry Officer, concluded the enquiry proceedings under perfunctory manner and failed to ask both the sides to argue their case or to file written briefs . 9. Inquiry Officer after allegedly complying with aforesaid directions, submitted another report dated 12.10.1989 and held that there was no adequate evidence to prove charge against petitioner, therefore, petitioner deserve to be exonerated. 10. Cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Post Box No. 3, Trimulgherry Post, Secunderabad upon petitioner. 15. Petitioner preferred an appeal before Director General, Ordnance Services, Master General of Ordnance Branch, Army Headquarters, DHQ, New Delhi (hereinafter referred to as DGOS ) vide memo of appeal dated 25.05.1991. When appeal was pending, petitioner received a memorandum dated 30.10.1991 proposing to forfeit pay and allowances, paid over and above subsistence allowance to petitioner during the period he was under suspension, but to treat period of suspension as qualifying service for other benefits. Petitioner submitted representation dated 06.12.1991. 16. Appeal was not decided, hence petitioner preferred O.A. No. 1579 of 1992 before Tribunal challenging order of punishment, i.e., Compulsory Retirement . However, Tribunal has dismissed O.A., hence this writ petition. 17. Sri B.N. Singh, learned counsel for petitioner submitted that: (i) Original documents were not produced before Inquiry Officer and petitioner had no occasion to inspect and verify the relied on documents supplied to him which were seriously challenged by petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of above charge no witness was cited. Only some documents were relied, as we have noted above. After receiving charge sheet dated 20.12.1983, petitioner submitted a letter dated 27.01.1984 to Officer Incharge AOC (Records) requesting for supply of documents relied in support of charge sheet, mentioned in Annexure-3 thereof. Copies of these documents were supplied to petitioner, whereafter vide letter dated 20.07.1984 he demanded some additional documents for his defence. 20. Major V.K. Nijhawan was appointed as Inquiry Officer by Brig. B.K. Kalra vide order dated 31.01.1985. Oral inquiry proceedings commenced on 13.08.1985. Petitioner appeared before Inquiry Officer and initially requested that since appeal against Adjudication Order is pending, therefore, inquiry should be withheld. Petitioner's defence representative then insisted upon that documents supplied to him are not verified or certified, therefore, authentic copies of documents should be made available to him. 21. Inquiry Officer asked petitioner, whether he accepts charge or not, to which no reply was given and instead it was said on behalf of petitioner that the charge levell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 (hereinafter referred to as Act, 1872 ) is not applicable. Therefore, submission that relied on documents were not supplied and opportunity was not given is not accepted. 25. We also find that Inquiry Officer permitted inspection of documents but that was also declined by petitioner and his Defence Assistant. Therefore, it cannot be said, in the entirety of facts as discussed above, that inquiry proceeding in the present case is vitiated in law for non supply or non production of original documents in oral inquiry. 26. Further submission that oral deposition of defence witnesses has not been believed, is also of no consequence in view of order passed by Custom Authorities imposing penalty upon petitioner. We do not find any illegality in the procedure followed by respondents for the reason that imposition of penalty by Adjudicating Authority of Custom Department had attai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India is a conduct unbecoming of a Government servant which constitute misconduct under Rule 3 of Rules, 1964. It is not a case that departmental inquiry has been dispensed with and petitioner has been punished. Hence, this question is also answered against petitioner. 29. Now we come to Point (iv) in support whereof Supreme Court's judgment in K.R. Deb (supra) has been relied. It cannot be doubted that in K.R. Deb (supra) construing Rule 15 of Rules, 1965 Supreme Court said that in a particular case if no proper inquiry has been held and some serious defect has been crept into inquiry or some important witnesses were not available at the time of inquiry or were not examined for some other reason, disciplinary authority may ask Inquiry Officer to record further evidence but there is no provision in Rule 15 for completely setting aside previous inquiry on the ground that report of Inquiry Officer does not appeal to disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion. 30. In the present case, aforesaid judgment clearly supports petitioner and reasons given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is unbecoming of a Government servant. (iv) commit himself to and uphold the supremacy of the Constitution and democratic values; (v) defend and uphold the sovereignty and integrity of India, the security of the State, public order, decency and morality; (vi) maintain high ethical standards and honesty; (vii) maintain political neutrality; (viii) promote the principles of merit, fairness and impartiality in the discharge of duties; (ix) maintain accountability and transparency; (x) maintain responsiveness to the public, particularly to the weaker section; (xi) maintain courtesy and good behaviour with the public; (xii) take decisions solely in public interest and use or cause to use public resources efficiently, effectively and economically; (xiii) declare any private interests relating to his public duties and take steps to resolve any conflicts in a way that protects the public interest; (xiv) not place himself under any financial or other obligations to any individual or organisation which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial superior to confirm the direction in writing. Explanation I.- A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected to him shall be deemed to be lacking in devotion to duty within the meaning the cause (ii) of sub-rule (1). Explanation II.- Nothing in clause (ii) of sub-rule (2) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities. 33. It is said that carrying of contraband goods by itself is not a serious misconduct under Rules, 1964. What items were actually carried by petitioner and whether carrying of such items was only an irregularity attracting higher rate of custom duty in the form of penalty or the goods which could not have been permitted to be imported in the country and mere possession thereof is illegal and an offence neither is shown nor considered nor discussed. In fact the respondents authorities h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such case, departmental inquiry would be nothing but a formality and an eye wash leaving no scope of defence to delinquent employee and thereby department can always claim exemption from proving the charge though onus lies upon department to prove charge. 36. At this stage, we would also like to point out with reference to statutory provisions that under Act, 1962 there is no word defined as contraband items or contraband goods . Act, 1962 contemplates certain kinds of goods like imported goods, prohibited goods, notified goods, specified goods and dutiable goods. 37. Terms imported goods and prohibited goods are defined in Section 2(25) and (33) and read as under: (25) imported goods means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption. (33) prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove his misconduct. In Union Of India vs H. C. Goel, AIR 1964 SC 364 Supreme Court said: Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries . It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. (emphasis added) 43. In view of above we are clearly of the view that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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