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TMI Blog2024 (3) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... g the integrity of the petitioner; the finding rather is that there was no malice or mala fide intent on the part of the petitioner and further that there was no allegation of any corrupt practice or extending undue benefit to the importer, against the petitioner. Accordingly, neither is there any material nor any finding recorded by the Inquiry Officer or the Disciplinary Authority about doubtful integrity of the petitioner even qua the conduct of the petitioner which became subject matter of disciplinary proceeding against him. To charge and punish a government servant for violation of Rule 3(1)(i) of the Conduct Rules, 1964, it should be proved that the officer concerned has failed to maintain absolute integrity. Since there is nothing on record which even remotely suggest that petitioner failed to maintain absolute integrity, no punishment on that count will be permissible against him. The finding recorded by the Inquiry Officer as also by the Disciplinary Authority are otherwise - in this view of the matter the petitioner in the instant case cannot be said to have found to have failed to maintain absolute integrity. So far as Rule 3(1)(ii) of the Conduct Rules, 1964 is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rte and Mr. Karthik Pillai. For the Respondents : Mr. R. R. Shetty with Mr. Prasenjit Khosla. ORAL JUDGEMENT [PER CHIEF JUSTICE]: 1. Heard Mr. Ramesh Ramamurthy, learned counsel representing the petitioner and Mr. R. R. Shetty, learned counsel representing the respondent. 2. Proceedings of this petition filed under Article 226 of the Constitution of India assail the validity of the order dated 26th April, 2013 whereby the petitioner has been inflicted with the punishment of withholding of 10% of monthly pension for a period of three years. 3. Under challenge in this petition is also the judgment and order dated 23rd January, 2020 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai (hereinafter referred to as the Tribunal ) whereby the Original Application No. 436 of 2014 challenging the punishment order dated 26th April, 2013 was dismissed. 4. The necessary facts, which are relevant for the purposes of appropriately deciding the issue raised in this petition, are stated thus. The petitioner while working on the post of Assistant Commissioner, Customs, was issued a charge-sheet dated 20th /24th August, 2007 which contained three charges. Articles of charges contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service, Appellate Tribunal, Western Zonal Branch at Mumbai. 6. On retirement of the petitioner, however, the departmental proceedings continued in terms of provisions contained in Rule 9 (2) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the Pension Rules, 1972 ). The matter was sent to the Central Vigilance Commission and the Commission in its second stage advice opined that the case appeared to be a fit case for imposition of major penalty of reduction to a lower stage in time scale of pay for two years. The petitioner was provided with the copy of the report of the Central Vigilance Commission, who submitted his comments and representation to the said report vide letter dated 6th October, 2009. Reference of the matter was also made to the Union Public Service Commission (UPSC), whereupon the UPSC vide its communication dated 2nd January, 2013 advised imposition of penalty of withholding of 10% of monthly pension for a period of three years. The petitioner submitted his representation to the said advice tendered by the UPSC vide his letter dated 9th March, 2013. 7. The Disciplinary Authority, however, passed the impugned order dated 26th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the petitioner was charged with the allegation of erroneously cancelling three bank guarantees concerning three Bills of Entry, without proper scrutiny and verification of documents and without ensuring compliance of the provisions contained in the notification dated 1st March, 2002. The second charge as per charge memorandum against the petitioner was that he failed to notice that the extension of time for re-export in respect of three Shipping Bills was given by an un-authorised officer and that differential duty was also not realized from the importer in terms of the notification dated 1st March, 2002. The last charge against the petitioner was that he failed to conduct and maintain proper supervision on the functioning of his subordinate employees and also failed to take all possible steps to ensure integrity and devotion of duty of the government servants who were under his control and authority while petitioner was posted as Assistant Commissioner of Customs, Group V-A, new Custom House, Mumbai. 13. As per the imputation of charge, the allegation against the petitioner was that a pre-dated Bill of Lading dated 28th February, 2004 was presented by the importer on 21st Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pay the amount voluntarily and once the duty is not paid, the same can be recovered under Section 142 of the Customs Act, 1962. There is also a finding recorded by the Inquiry Officer that there is no revenue loss because of cancellation of bonds and bank guarantees by the petitioner. These findings are recorded in paragraph 18.11 of the Inquiry Report, which is extracted herein below: - 18.11 There is no dispute that the Charged Officer initiated action for issuance of demand as soon as he came to know that re-export took place after expiry of six months from the date of importation. The differential amount of duty has been protected by issuance of demand notice (Ex. D-I) which has been confirmed vide Order-in-Original (Ex. D-II) passed by Commissioner of Customs (Imports), Mumbai. In the Order-in-Original (Ex. D II), the Commissioner of Customs (Imports) has held that the liability in the instant case is a continuing liability till the conditions of the said notification are satisfied and the time bar under section 28 of the Customs Act, 1962 would not apply. I also find that the Bond and Bank Guarantee were mere mechanism for recovery of the differential duty in case the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intain absolute integrity or acted in a manner unbecoming of a government servant, are not proved. 17. Regarding Charge No. II also the finding of the Inquiry Officer, as can be found in inquiry report, is to the effect that the charge that the petitioner failed to maintain absolute integrity or acted in a manner unbecoming of a government servant are not proved. The said finding can be found in para 19.6 of the inquiry report, which is extracted hereinbelow: - 19.6 Even if, it is presumed that it was the responsibility of the Assistant Commissioner, Group-VII export to realize the differential amount of duty, the Charged Officer was required to verify as to whether differential duty, if any, was paid, before cancellation of bonds and bank guarantees. There is no dispute on the fact that it was the prime responsibility of the Appraiser to verify all the documents submitted by the importers along with the application for cancellation of bonds and bank guarantees. The Appraiser failed to point out the liability of the importer about the differential amount of duty and recommended cancellation of bonds and bank guarantees. The Charged Officer approved the note of Appraiser without scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on record to show that the Charged Officer had knowledge of alleged failure on the part of the Appraiser working under him. The evidence brought on record show that the Appraiser working under the Charged Officer was an experienced officer and had worked in Special Intelligence and Investigation Branch (SIIB) of Imports and Exports. If the Appraiser working under the Charged Officer failed to scrutinize the documents properly in one case, it cannot be said that the Charged Officer failed to conduct and maintain proper supervision on the functioning of Group V-A or failed to ensure absolute integrity and devotion to duty of his subordinate officers. I am convinced that for sustaining such charge repeated incidences are required. There is no evidence to suggest that such omissions and commissions by the subordinate officers had taken place on many occasions. Therefore, the article of charge-III is not proved. 19. Having recorded the findings in respect of all the three Articles of Charges by specifically finding that charges that Charged Officer failed to maintain absolute integrity or he is unbecoming of a government servant, were not found proved and no evidence was found that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit, 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 organization which may influence him in the performance of his official duty; (xv) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, his family or his friends; (xvi) make choices, take decisions and make recommendations on merit alone; (xvii) act with fairness and impartiality and not discriminate against anyone, particularly the poor and the under-privileged sections of society; (xviii) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices; (xix) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Neither the inquiry report nor the order of punishment dated 26th April, 2013 passed by the Disciplinary Authority has recorded any finding about doubtful integrity of the petitioner. The Disciplinary Authority in his order, on the other hand, records a categorical finding that the charge of lack of integrity against the Charged Officer could not be substantiated . It is also to be noticed that even the Inquiry Officer has not found any such material on record which would lead him to doubting the integrity of the petitioner; the finding rather is that there was no malice or mala fide intent on the part of the petitioner and further that there was no allegation of any corrupt practice or extending undue benefit to the importer, against the petitioner. 23. Accordingly, neither is there any material nor any finding recorded by the Inquiry Officer or the Disciplinary Authority about doubtful integrity of the petitioner even qua the conduct of the petitioner which became subject matter of disciplinary proceeding against him. To charge and punish a government servant for violation of Rule 3(1)(i) of the Conduct Rules, 1964, it should be proved that the officer concerned has failed to mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f erroneously cancelling three bank guarantees without proper scrutiny and verification of documents put up before the petitioner and has, thus, reached the conclusion that the charge against the petitioner, thus, constituted grave misconduct warranting action under Rule 9 of the Pension Rules, 1972. 26. It is also to be noticed that the Inquiry Officer has recorded a clear finding that the petitioner-initiated action for issuance of demand as soon as it came to his knowledge that re-export took place after expiry of six months from the date of importation. The Inquiry Officer has recorded a finding that the petitioner did not have any mala fide intention and that the circumstances of the case suggest that he cancelled the bonds and bank guarantees relying on Bills of Lading and on the recommendation of the Appraiser. The finding by the Inquiry Officer is also to the effect that the charge that the petitioner failed to maintain absolute integrity or acted in a manner unbecoming of a government servant are not proved. 27. We also notice that any penalty under Rule 9 of the Pension Rules, 1972 can precipitate in two circumstances, namely, (i) if a government servant is found guilty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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