The Union Of India Throgh The ... vs Balakrishna Thiruvengadam ...
2017 Latest Caselaw 3439 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CIVIL APPELLATE JURISDICTION

                 WRIT PETITION NO.6368 OF 2013


1 The Union of India, through
The Chairman,
Central Board of Excise & Customs,
North Block, New Delhi-110 001

2 The Chief Commissioner of Central
Excise,
Mumbai Zone-I, 115, Maharshi Karve Road,
New Central Excise Building, Churchgate,
Mumbai 400 020

3 The Commissioner of Central Excise,
Thane-I,
Nav Prabhat Chambers,
Ranade Road, Dadar (West),
Mumbai 400 028.

4 The Joint Commissioner (P&V),
Central Excise, Thane-I,
Nav Prabhat Chambers,
Ranade Road, Dadar (West),
Mumbai 400 028.                                     ......Petitioners

                 Versus

Balakrishnan Thiruvengadam Mudaliar,
Last employed at :
Central Excise, Thane-I Commissionerate,
Nav Prabhat Chambers,
Ranade Road, Dadar (West),
Mumbai 400 028
Residing at: BDD Chawl No.18, Room No.6,
Worli, Mumbai- 400 018.                  .......Respondent




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Mrs. Neeta V. Masurkar , Advocate for Petitioners.
Mr. Milan Topkar i/by Ranjan Todankar, Advocates for
Respondents.


                          CORAM : SMT. V.K. TAHILRAMANI, &
                                  SANDEEP K. SHINDE, JJ.

DATE : June 21, 2017.

JUDGMENT : [Per Shri Sandeep K. Shinde, J.]

Rule. Rule made returnable forthwith. With

consent of the learned counsel for the parties, the matter is

taken up for final hearing forthwith.

2 The Union of India has preferred this writ

petition against the order dated 21.2.2013 passed by the

Central Administrative Tribunal in Original Application

No.787 of 2010 whereby the Union of India and other

petitioners herein were directed to reinstate the

respondent (Original Applicant) in service with continuity of

service and the penalty imposed on him of compulsory

retirement was reduced to stoppage of one increment for a

period of three years. Aggrieved by the said order, the

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Union of India has preferred this petition under Articles 226

and 227 of the Constitution of India.

3 The Respondent/Original Applicant was working

as driver in the Central Excise Commissionerate, Bombay

(II). On 4.6.2003, the respondent was in the

office/chamber of one Mr. Keer, public servant working in

the office of Central Excise. At the relevant time, Mr. Keer

asked the respondent to count Rs.1,000/- allegedly given to

him by Mr. Pasha as bribe. After counting money, the

respondent returned the same to Mr. Keer. Mr. Keer

thereafter handed over the said amount to Mr. M.S.Kamble,

who was clerk in the very office. Money given by Mr. Pasha

to Mr. Keer was tainted money in-as-much as a trap was led

by the Anti Corruption Bureau, CBI and Mr. Keer was

apprehended by the officers of the ACB. Mr. Keer was tried

in the Special Case No.51/2004 under the provisions of the

Prevention of Corruption Act, 1988. Mr. Keer was dismissed

from service. Neither the respondent nor Mr. Kamble were

prosecuted. In fact, respondent/original applicant was

prosecution witness in the Special Case No.51 of 2004. On

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the backdrop of these facts, the respondent was suspended

on 5.6.2003 and the disciplinary proceedings were initiated

against him and Mr. Kamble. Charge-sheet was issued

against him on 13.9.2004 and the article of charge would

read:

" Shri Balakrishnan Thiruvengadan Mudaliar, Driver, Customs Marine & Preventive Wing, 3 rd Floor, Everest House, Marine Drive, Mumbai, while functioning as above, being Government servant, committed gross mis-conduct in as much as he received the tainted bribe amount from Shri S.A.Keer who accepted this amount as a bribe/illegal gratification from Shri Abdul Pasha in connection with disbursing the sanctioned reward amount to Shri Pasha. Shri Mudaliar was aware that this amount was not a legal income of Shri Keer. He did not maintain absolute integrity and showed lack of devotion to duty and acted as unbecoming of Government servant.

The above acts of Shri B.T.Mudaliar are unbecoming of a Government Servant and he thereby contravened Rule 3(1)(i), (ii) & (iii) of CCS (Conduct) Rules, 1964."

4 Inquiry officer held enquiry under Rule 14 of CCS

(CCA) Rules, 1965 against M.S.Kamble and the respondent

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herein. Vide enquiry report 15.6.2006, he recorded the

finding thus, "as far as charged officers Shri B.T.Mudaliar

(Driver/Respondent herein) and Shri Kamble (LDC) are

concerned, there was no charge of demand of bribe against

them, but they were part of game and their nexus cannot

be ruled out. As Shri Mudaliyar and M.S.Kamble were

assisting Mr. Keer in his activities, suitable punishment may

be considered against them by the disciplinary authority."

5 It may be stated that disciplinary authority of

the Respondent was Joint Commissioner (P&V) Central

Excise, Thane whereas the disciplinary authority of Mr.

Kamble was different. Be that as it may, disciplinary

authority of the respondent vide order dated 8.1.2008 held

him guilty of charge and inflicted penalty of compulsory

retirement from the service with immediate effect.

Respondent preferred an appeal before the

Commissioner Central Excise, Thane (I) who by order dated

30.3.2009 dismissed the appeal. Aggrieved by the same, a

revision was preferred but it met with same fate vide order

dated 27.8.2010.

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6                That aggrieved by the order passed by the

disciplinary authority dated 8.1.2008, the order dated

30.3.2009 passed by the appellate authority and the order

dated 27.8.2010 passed by the revisional authority, he

preferred the Original Application before the CAT, which

was allowed as stated here-in-above and thus, this petition

by the Union of India.

7 Heard the learned counsel for the petitioners

and the respondent. Perused the pleadings, disciplinary

proceedings and such other reports.

8 The learned counsel for the petitioners would

contend that the CAT exceeded its jurisdiction by

interfering with the administrative order without recording

finding that the punishment imposed was shockingly

disproportionate. She would contend that the Court cannot

interfere with quantum of punishment unless it is shown

that administrative decision was illogical or suffers from

procedural impropriety. She would submit that the CAT has

not recorded finding on either of these counts. She would

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also submit that the CAT has committed error by reducing

the quantum of punishment at par that with Mr. Kamble.

She would submit that reliance of the CAT on the judgment

in the case of Tata Engineering & Locomotive Co. v.

Jitendra Pd. Singh and Anr. reported in 2002 SCC (L &

S) 909 was misplaced. She, therefore, submitted that the

order passed by the CAT is against settled principles of law

and, therefore, the said order may be quashed and set

aside.

9 The learned counsel for the respondent, on the

other hand, has supported the order of the CAT.

10 The following facts are not disputed viz.,

(a) That the respondent and Mr. Kamble were not prosecuted by Anti Corruption Bureau.

(b) That the respondent and Mr. Kamble were present in the cabin of Mr. Keer on 4.6.2003. The charge against the respondent was gross misconduct for counting tainted bribe amount from S.A.Keer and that the respondent was aware that this amount was not legal income of Shri Keer. He was charged for not maintaining absolute integrity and

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for lack of devotion to duty.

(c) In enquiry report dated 15.6.2006, the respondent and Kamble were held guilty of charge on the ground that their nexus with Mr. Keer cannot be ruled out with a finding that they were assisting S.A. Keer in his activities.

(d) That Mr. Kamble was awarded punishment of reduction of increment for five years by the disciplinary authority, which was further reduced for a period of 3 years by the appellate authority

(e) The respondent was punished with compulsory retirement by the disciplinary authority and it was confirmed by the appellate and revisional authority.

11 The learned counsel for the respondent

vehemently submitted that finding recorded by the enquiry

officer against respondent and Mr. Kamble is the same

but the punishments awarded to the present respondent is

not only disproportionate but also harsh. He would further

submit that Mr. Kamble though found guilty of charge for

assisting Mr. Keer in his activities, he was awarded lesser

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punishment of stoppage of increment for 3 years as against

the punishment awarded to the respondent of compulsory

retirement. He, therefore, urged that the CAT has correctly

placed reliance on judgment in the case of Tata

Engineering and Locomotive (Supra). Mr. Topkar, the

learned counsel for the respondent, has relied on the

observations of the Supreme Court in the said case wherein

it was held that:

"Since as many as three workmen on almost identical charges were found guilty of misconduct in connection with the same incident, though in separate proceedings, and one was punished with only one month's suspension, and the other was ultimately reinstated in view of the findings recorded by the Labour Court and affirmed by the High Court and the Supreme Court, it would be denial of justice to the appellant if he alone is singled out for punishment by way of dismissal from service."

Mr. Topkar has taken us through the orders passed by the

Appellate authority and the revisional authority on the

quantum of punishment. He has also taken us through the

transcript of conversation between Mr. Keer and Mr. Pasha,

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eventually recorded by raiding party members. Mr. Topkar

has taken us through the finding of the appellate authority

wherein (Para 34) it is recorded that conversation between

Mr. Keer and Mr. Pasha was heard by this respondent. Same

finding is recorded by the revisional authority in paragraph

20. On this premise, Mr. Topkar submitted finding recorded

by both the authorities is contrary to the material on record

and particularly, transcript of conversation between Mr.

Keer and Mr. Pasha.

12 We have perused the orders passed by the

appellate authority and the transcript of conversation

between Mr. Pasha and Mr. Keer. At the first place,

transcript does not suggest demand by Mr. Keer. The said

conversation in no manner suggest that Mr. Keer demanded

the bribe. It is not possible to conceive even on the touch-

stone of preponderance of probabilities, that the

respondent would know Rs.1,000/- given to him by Mr. Keer

was tainted money or bribe given to him by Mr. Pasha.

There appears nothing on record to indicate that the

respondent was either sharing intention or had knowledge

that money given to him was tainted or a bribe. The Shivgan

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transcript does not suggest anything. No other evidence

was brought on record to show that respondent was aware

that Mr. Pasha would be giving bribe to Mr. Keer. Both the

authorities have held that it was within the knowledge of

the respondent and, therefore, he assisted Mr. Keer in his

activities.

The finding recorded by both the authorities that the

respondent was aware that the money counted by him at

the instance of Mr. Keer was tainted money was without

any foundation and/or material. In the circumstances, such

finding recorded by both the authorities as was de-horse

the material on record and hence, incorrect.

13 Another charge against him was not maintaining

absolute integrity and the lack of devotion to duty. The

learned counsel for the petitioners relied on communication

dated 10.4.2003, addressed by one Shri S.A.Rahate,

Superintendent (Maintenance), Mole Station whereby he

requested office of petitioners for provision of vehicle to

carry out maintenance job at Alibag, Shrivardhan and

Murud and for aerials, wire-less sets. She submitted that

date mentioned in the request letter for vehicle was erased Shivgan

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with white fluid and substituted with 4.6.2003 in place of

10.4.2003. She would contend that on the basis of this

forged letter, the respondent was claiming he was to drive

the vehicle to the destination on 4.6.2003 and as Mr. Keer

was interested to travel in the said vehicle, he came in the

office of Mr. Keer.

14 That relying on this document, learned counsel

for Petitioners submitted that presence of the respondent in

cabin of Mr. Keer was voluntary and, therefore, knowledge

on his part that it was tainted money is to be inferred. This

contention cannot be accepted, firstly, for the reason that

the respondent was not charged for forging official

communication dated 10.4.2003 and secondly, from this

document, it cannot be inferred that he was either sharing

intention and/or knowledge with Mr. Keer. It is for this

reason, it cannot be held even on touch-stone of

preponderance of probabilities that respondent was helping

Mr. Keer in his activities.

15 Now the question arises as to whether the

petitioners were justified in inflicting major penalty on the Shivgan

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respondent, as admittedly much lesser penalty was

inflicted on Mr. Kamble though both were held guilty for

helping Mr. Keer in his activities in one and same enquiry.

The disciplinary as well as the revisional authorities while

dealing with this contention held in the respective orders

that the disciplinary and the appellate authority of Mr.

Kamble was different and, therefore, decision taken by

those authorities would not bind them. This finding appears

to be strange and not sustainable for the simple reason

that Mr. Kamble and the respondent were held guilty in the

one and the same enquiry. Evidence gathered against them

was common and under these circumstances the

authorities could not have awarded different punishments

to the respondent when both were held guilty of the same

charge and by same enquiry officer.

That after appreciating the material on record,

we are of the opinion that disciplinary as well as revisional

authorities have committed an error by concluding a fact

that the respondent "was aware" and was "knowing" that

the money counted by him was bribe given to Mr. Keer by

Mr. Pasha. There is absolutely no evidence to support such

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finding. What remains is to ascertain as to whether

presence of the respondent in the cabin of Mr. Keer was

voluntary or otherwise. That even assuming that the

respondent was party to forged communication of March,

2003 but since he was not charged with this, he cannot be

held guilty. That even otherwise the punishment awarded

to the respondent in the aforesaid facts and circumstances

is illogical and highly disproportionate. A co-delinquent has

been awarded punishment of stoppage of increment for a

period of three years whereas punishment awarded to the

respondent is compulsory retirement. In view of these facts

and circumstances, we are of the opinion that the learned

CAT committed no error and no interference is called for in

its order dated 21.2.2013. Resultantly,the petition fails. The

same is dismissed. Rule is discharged.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)

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