Capt. Sushant Kumar vs The Shipping Corporation Of India ...
2021 Latest Caselaw 8117 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION
                    WRIT PETITION (ST.) NO.10746/2021

       Capt. Sushant Kumar                                     .. Petitioner
       vs.

       The Shipping Corporation
       of India Ltd. & Ors.                                 .. Respondents

                                       .....

       Dr. Abhinav Chandrachud with Ms Vidya Kulkarni i/b UV
       Associates for the petitioner.
       Mr. Sandeep Marne for Respondents.

                                       .....

                                CORAM: K.K.TATED, &
                                       RIYAZ I. CHAGLA, JJ.

DATED : JUNE 19, 2021 P.C.

1. Heard.

2. By this petition, under Article 226 of the Constitution of India, the Petitioner is challenging the order dated 06/03/2020 passed by the Director (P&A) and Disciplinary Authority of the Shipping Corporation of India Ltd imposing penalty on the Petitioner. The penalty is reduction of two increments in time scale of pay for a period of one year from the date of order.

3. An operative part of the order reads thus:

"12. Order After taking into consideration my analysis of all the facts, proceedings of hearings, evidence

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on record, the report of IO and overall circumstances of the case, I hold the CE guilty wrt Charge No 4 partly as described above.

In view of foregoing and in accordance with CDA Rules of the Corporation, I award the following penalty to the CE capt Sushant Kumar, Senior Manager, EC No. 7563020: "Reduction of two (2) increments in the time scale of pay for a period of one (1) year from the date of order. The employee will not earn increment of pay during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increment of pay."

4. The learned counsel for the Petitioner submits that though the Authority held that the non disclosure of earlier employment with VPT was not intentional, they imposed major penalty. Hence, the Petitioner fled the present writ petition.

5. The learned counsel for the Petitioner submits that though the alternate effcacious remedy is available to the Petitioner, considering the facts of the present case the petition is maintainable. In support of this contention, he placed on record the Judgment of the Apex Court in the matter of Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut reported in (2005)7 Supreme Court Cases 749 and Salim Babu Shaikh Vs. State of Maharashtra Through Principal Secretary and Another reported in 2019 SCC OnLine Bom 12824 : (2020) 2 AIR Bom R (NOC 8) 3.

6. On the other hand, the learned counsel for the Respondents submits that there is a specifc alternative

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effcacious remedy for the Petitioner before CMD as per the Shipping Corporation of India Conduct Discipline and Appeal Rules 2011. Rule 32 reads thus:

Appeals :

1. An employee may appeal against an order imposing upon him any of the penalties specifed in rule 23 or against the order of suspension referred to in Rule 20. The appeal shall lie to the authority specifed in the schedule.

2. An appeal shall be preferred within one month from the date of communication of the order appealed against. The appeal shall be addressed to the Appellate Authority specifed in the schedule and submitted to the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the appellate authority within 15 days. The appellate authority shall consider whether the fndings are justifed or whether the penalty is excessive or inadequate and pass appropriate orders within three months of the date of appeal. The appellate authority may pass order confrming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem ft in the circumstances of the case. Provided that if the enhanced penalty which the appellate authority proposes to impose is a major penalty specifed in Rule 23 and an inquiry as provided in Rule 25 has not already been held in the case, the appellate authority shall direct that such an enquiry be held in accordance with the provisions of Rule 25 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. If the appellate authority decides to enhance the punishment but an enquiry has already been held as provided in Rule 25, the appellate authority shall give a show cause notice to the employee as to why the enhanced penalty

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should not be imposed upon him. The appellate authority shall pass fnal order after taking into account the representation, if any, submitted by the employee.

As alternate effcacious remedy is available to the Petitioner, there is no question of entertaining the present writ petition.

7. In the matter of Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut, 2005 (7) SCC 749 the Apex Court held that suppression of facts can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. Paragraph 27 of the said judgment reads thus:

"27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. Vs. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we fnd that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to fnd willful suppression. Therefore, in view of our fndings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Offcer to proceed to recover duties in the manner indicated in proviso to section 11A of the Act. We are, therefore, of the frm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts". In Densons

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Pultretaknik vs. Collector of Central Excise [2003 (11) SCC 390], this Court held that mere classifcation under a different sub-heading by the manufacturer cannot be said to be willful misstatement or "suppression of facts". This view was also reiterated by this Court in Collector of Central Excise, Baroda, vs. LMP Precision Engg.Co.Ltd. [2004 (9) SCC 703] However, in the case of LMP Precision Engg. Co. Ltd. (supra), this Court came to the conclusion that the manufacturer was guilty of "suppression of facts". In that decision, manufacturer did not make any attempt to describe the products while seeking an approval of classifcation list and in that background of facts, it was held that it amounted to "suppression of facts" and therefore, excise authorities were entitled to invoke proviso to section 11A of the Act. It also appears from that decision that this Court also held that if any classifcation was due to mis-interpretation of the classifcation list, suppression of facts could not be alleged. From this judgment, it is therefore clear that since the excise authorities had collected samples of the products manufactured by the appellant and inspected the products and the relevant facts were very much in the knowledge of the excise authorities and nothing could be shown by the excise authorities that there was any deliberate attempt of non- disclosure to escape duty, no claim as to "suppression of facts" could be entertained for the purpose of invoking the extended period of limitation within the meaning of proviso to section 11A of the Act."

It is to be noted this Authority is not applicable in the facts and circumstances of the case in hand. In the instant case, the Petitioner has failed to disclose in his form that earlier he worked with the other Organization i.e. VPT. In the said form, there was a specifc column to disclose the earlier employment.

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8. Similarly, the authority cited by the Petitioner in the matter of Salim Babu Shaikh (supra) is also not applicable in the case in hand. Paragraph 7 of the said judgment reads thus:

"7. We have carefully examined the erstwhile Rule 10 of the Central Excise Rules, Section 11-A of the Act as introduced in the year 1980 and Section 11-A of the Act after the amendment in the year 2000. From a plain reading of Rule 10 of the Central Excise Rules, we fnd that the proper offcer is conferred with the power to recover duties not levied or not paid or short-levied or not paid in the full or erroneously refunded to initiate recovery proceedings within six months from the relevant date. However, Rule 10 of the Central Excise Rules and Section 11-A of the Act prior to the 2000 Amendment, did not say that recovery of duties not levied or not paid or short- levied or not paid in full or erroneously refunded could be done even where the classifcation of the goods was approved by the Department."

It is to be noted that, there is no question of any specifc rule in the case in hand. There is specifc column in the Form to disclose the earlier employment. Hence, this Authority is also not applicable in the facts of the present case.

9. Considering the submissions made by both counsel and as the issue of alternate remedy has been raised by the advocate for the Respondents, there is no question of granting any interim relief, at present. Hence, the following order:

a. Admit.

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               b.       Hearing is expedited.


               c.       Mr. Marne waives service for the Respondents.




       ( RIYAZ I. CHAGLA, J.)                         (K.K.TATED, J.)




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