Bombay High Court
Jhamman Singh vs The Union Of India And 3 Ors on 2 February, 2024
2024:BHC-OS:1962-DB
26-WP-2390-2022
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2390 OF 2022
Jhamman Singh
Indian Inhabitant,
aged 71 yrs.
Deputy Commissioner
of Customs (Retired)
Residing at A-602,
Gurudristi CHSL,
MHADA Layout, S.V.P. Nagar,
Four Bungalows, Andheri (W),
Mumbai 400 053. .. Petitioner
Versus
1. The Union of India
Through the Secretary to
The Government of India
Ministry of Finance
Department of Revenue
North Block,
New Delhi - 110 001
2. The Chairman
Central Board of Indirect
Taxes & Customs
Government of India,
Ministry of Finance,
Dept. of Revenue,
North Block,
New Delhi - 110 001
3. The Commissioner of
Customs (General),
New Custom House,
Ballard Estate,
Mumbai 400 001
4. The Registrar of the
Central Administrative
Tribunal, Bombay Bench,
Mumbai, constituted
Under Section 4 of the
Administrative Tribunals
1
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Act, 1985 (Act 13 of 1995)
Having office at 4th Floor,
Gulestan Bldg., Prescot Road,
For, Mumbai - 400 001. .. Respondents
Mr. Ramesh Ramamurthy with Mr. Saikumar Ramamurthy,
Ms.Kavita Anchan, Ms. Seema Sorte and Mr. Karthik Pillai for
petitioner.
Mr. R. R. Shetty with Mr. Prasenjit Khosla for respondents.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
Date: 2nd FEBRUARY, 2024
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 26 th
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.
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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 in the charge memorandum are
extracted hereinbelow: -
"Article of Charge- I: That he erroneously cancelled
three bank guarantees concerning Bills of Entry Viz. 1)
S/9-RE-105/2003 Gr. V-A, 2) S/9-RE-106/2003 Gr. V-A
and 3) S/9-RE-128/2003 Gr. v-A, without proper
scrutiny and verification of documents put up to him and
without ensuring compliance of the norms prescribed by
the Notification No. 27/2002 dated 01.03.2002.
Article of Charge- II: That he failed to notice that the
extension of time for re-export in respect of three
Shipping Bills viz. 1) 1000000467, 2) 1000000470 and
3) 1000000468 all dated 13.02.2004 was given by an
un-authorised officer and that differential duty had also
not been realized from the importer as prescribed by the
Notification No. 27/2002 dated 01.03.2002.
Article of Charge - III: That he failed to conduct and
maintain proper supervision on the functioning of Group
V-A and also failed to take all possible steps to ensure
the integrity and devotion of duty of the government
servants for the time being under his control and
authority, while he was posted as Assistant
Commissioner of Customs, Group V-A, New Custom
House, Mumbai.
By the above acts of commission and omission,
Shri Jhamman Singh, Assistant Commissioner, failed to
maintain absolute integrity, exhibited lack of devotion to
duty and acted in a manner unbecoming of a Govt.
servant thereby violated Rule 3(1)(i), 3(1)(ii) and
3(1)(iii) of the Central Civil Services (Conduct) Rules,
1964."
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5. On the basis of imputation of alleged misconduct, thus,
the petitioner was charged of the afore-mentioned charges
and according to the respondents he failed to maintain
absolute integrity, exhibited lack of devotion to duty and acted
in a manner unbecoming of a government servant which
amounted to breach and violation of Rule 3(1)(i), 3(1)(ii) and
3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964
(hereinafter referred to as "the Conduct Rules, 1964). The
petitioner submitted his reply to the charge-sheet denying the
charges and accordingly the disciplinary proceedings were
carried on against him, on conclusion of which the Inquiry
Officer submitted his report on 17th September, 2008. The
petitioner in the meantime retired from government service
on 30th June, 2010 on his attaining the age of superannuation
while working as Departmental Representative in the
Customs, Central Excise and 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
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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, 2013 whereby the penalty of
withholding of 10% of monthly pension for a period of three
years has been imposed upon the petitioner.
8. The petitioner filed Original Application before the
Tribunal challenging the punishment order dated 26th April,
2013 where the proceedings ended in dismissal of the Original
Application by the Tribunal vide judgment and order dated
23rd January, 2020. It is this judgment and order dated 23 rd
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January, 2020 passed by the Tribunal, apart from the
punishment order dated 26th April, 2013, which are under
challenge in this writ petition.
9. Impeaching the punishment order as also the judgment
and order passed by the Tribunal, Mr. Ramamurthy, learned
counsel for the petitioner has vehemently argued that the
impugned order of punishment is absolutely illegal as in
absence of any clear finding of loss to the government and
also in absence of finding of doubtful integrity or any
allegation of corruption or doing the favour to any third party,
the impugned punishment could not have been inflicted upon
the petitioner. It has further been argued that there is no
material or document or record which goes on to prove grave
misconduct on the part of the petitioner and, hence, in
absence of grave misconduct or any pecuniary loss caused to
the government, Rule 9 of the Pension Rules, 1972 is not
attracted in this case, which vitiates the punishment order.
10. Mr. Shetty, learned counsel representing the
respondents, on the other hand, has opposed the writ petition
and submitted that the Disciplinary Authority on the basis of
appropriate evaluation of the evidence and material available
on record has reached to the conclusion that the petitioner in
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discharge of his duty misconducted himself in terms of the
provisions contained in Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of
the Conduct Rules, 1964 and, hence, the punishment of
withholding of 10% of monthly pension has rightly been
inflicted on the petitioner which does not call for any
interference by this Court in exercise of its extra ordinary
jurisdiction under Article 226 of the Constitution of India.
11. We have carefully considered the respective submissions
made by the learned counsel representing the parties and
have also gone through the records available before us on this
writ petition.
12. The charges, as contained in the charge memorandum,
have already been extracted above, according to 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
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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 21 st May,
2004 whereas the "Let Export Order" was granted after 28 th
February, 2004, however, the petitioner failed to check the
said date and failed to maintain absolute integrity and shown
lack of devotion to duty by cancelling three bank guarantees
without proper scrutiny and verification of documents.
14. While denying the charges, the defence taken by the
petitioner to the memorandum of charges was that the bonds
and bank guarantees were cancelled on the basis of Bill of
Lading dated 28th February, 2004 which was within six months
from the date of import clearance of goods and that
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cancellation was done based on the recommendations made
by the Appraisal Officer and thereafter when it came to the
notice of the petitioner that the documents were manipulated
and facts were suppressed by the importer, recovery was
initiated by him against the importer. Further defence taken
by the petitioner was that there was no allegation of any mala
fide intent on his part and at the most the imputation of
charge may amount to "error in cancellation". The petitioner
also stated in his defence that at the most cancellation of the
bonds and bank guarantees in respect of three Bills of Entry
pertaining to the same importer may amount to bona fide
error which occurred in the course of good faith in an attempt
made at compliance of the requirements. Further defence
taken by the petitioner was that an error of judgment or mere
carelessness or negligence of duty does not amount to
misconduct and that the differential amount of duty was
protected by issuance of demand notice on 16 th September,
2005 itself. It is also the case of the petitioner that there is
no loss to the revenue as the recovery of the differential
amount of duty was made from the importer.
15. The inquiry report dated 17th September, 2008
submitted by the Inquiry Officer is worth noticing in this case.
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Inquiry Officer has recorded a finding that there is no dispute
that the Charged Officer (i.e. the Petitioner) himself 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 and that differential amount of duty has
been protected by issuance of demand notice. Inquiry Officer
further goes on to return a finding that the bonds and bank
guarantees were only mechanisms for recovery of differential
amount of duty in case a party did not 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
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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 did not
pay up the amount voluntarily. Once the duty differential
is payable, the same can be recovered under section 142
of the Customs Act, 1962. In any case, cancellation of
bonds and bank guarantees cannot change the position
regarding duty liability of the importer. This can at most
make the job of the department a bit difficult to recover
the differential duty. Therefore, there is no revenue loss
because of cancellation of bonds and bank guarantees by
the Charged Officer. However, cancellation of Bonds and
Bank Guarantees has made the recovery of differential
amount of duty."
16. On the basis of analysis of the evidence available on
record, the Inquiry Officer also recorded a finding that there is
no allegation that the petitioner had any mala fide intention
and also that the circumstances suggest that the petitioner
had cancelled the bonds and bank guarantees on the
recommendation of the Appraiser and hence, the charge that
the petitioner failed to maintain absolute integrity or acted in
a manner unbecoming of a government servant are not
proved. Para 18.13 of the inquiry report in this regard is
relevant to be extracted, which reads as under: -
"18.13 Considering above, the approval of note of
Appraiser for cancellation of bonds and bank guarantees,
by the Charged Officer without scrutinizing all the
relevant documents, was not a correct decision. If the
Charged Officer was little careful and had scrutinized all
the papers, he could have detected that the `Let Export
Orders' were given in the subject three cases after the
expiry of six months from the dates of importation. He
could have also detected that Bill of Lading date i.e.
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28/02/2004 which is prior to `Let Export Order' dates, is
wrong and accordingly, could have disallowed
cancellation of bonds and bank guarantees. Therefore, I
am of the view that the cancellation of bonds and bank
guarantees by the Charged Officer without ensuring
payment of differential amount of duty and without
scrutinizing all the documents in file, shows lack of
devotion to duty on his part. As there is no allegation in
the Charge memorandum that the Charged Officer had
any malafide intention and also circumstances of case
suggest that the Charged Officer cancelled the bonds
and bank guarantees relying on the Bills of Lading and
recommendation of the Appraiser, I am of the view that
charges that the Officer failed to maintain 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 scrutinizing all the documents,
himself, which shows lack of devotion on his part. The
failure of the Charged Officer to notice non-payment of
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differential amount of duty by the importers, was due to
improper scrutiny of documents as mentioned in the
Article of Charge-I. However, as there is no allegation in
the Charge Memorandum that the Charged Officer had
any malafide intention and also circumstances of case
suggest that the Charged Officer cancelled the bonds
and bank guarantees on the basis of Bills of Lading and
recommendation of the Appraiser, I am of the view that
charges that the Officer failed to maintain absolute
integrity or acted in a manner unbecoming of a
government servant, are not proved."
18. In respect of Article of Charge-III, the Inquiry Officer
was convinced that there was no evidence to suggest that any
omissions or commissions by the subordinate officers of the
petitioner had taken place on many occasions and hence, the
charge was not proved. Paragraph 20.2 of the Inquiry Officer's
report is extracted hereinbelow: -
"20.2 From the evidences brought on record during
the inquiry proceedings, I find that Charged Officer had
only one month experience of working as the Assistant
Commissioner in Import Group. The application of the
importer for cancellation of bonds and bank guarantees
was scrutinized by the Appraiser, who was an
experienced Appraiser. The Appraiser proposed
cancellation of bonds and bank guarantees without
pointing out the duty liability of the importer. The Bill of
Lading which is issued after clearance of goods by the
Customs, submitted by the importer showed issuing date
as 28/02/2008 which was within stipulated period of 6
months. Therefore, approval of proposal of Appraiser for
cancellation of bonds and bank guarantees, by the
Charged Officer without personally verifying the `Let
Export Order' dates on the shipping bills, appears to be a
bonafide mistake. The evidences brought before me do
not show any other instance where the Charged Officer
had committed such mistakes. For a single failure on the
part of the Charged Officer to detect an error in the
instant case, it cannot be said that he failed to conduct
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and maintain proper supervision on the functioning of
the Group V-A. In the instant case, the Charged Officer
approved the proposal of the Appraiser for cancellation
of bonds and bank guarantees. There is no evidence 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 any omission or commission
by the subordinate officers of the petitioner had taken place.
Inquiry Officer, however, in para 21 of the inquiry report
proceeds to record that charge in Article of Charge-I is
proved, charge in Article of Charge-II is partly proved and
charge in Article of Charge-III is not proved. The Inquiry
Officer also states in the inquiry report that by such act of
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commission and omission, the petitioner exhibited lack of
devotion to duty and thereby contravened the provisions of
Rule 3(1)(ii) of the Conduct Rules, 1964, however, violation of
Rule 3(1)(i) and 3(1)(iii) of the Conduct Rules, 1964 were not
found proved. In his final analysis, Inquiry Officer in inquiry
report states that the petitioner exhibited lack of devotion to
duty and thus contravened Rule 3(1)(ii) of the Conduct Rules,
1964, however, the violation of other two rules, namely Rule
3(1)(i) and 3(1)(iii) were not found proved by him.
20. The Disciplinary Authority, however, while passing the
order of punishment dated 26th April, 2013, recorded a
conclusion that the petitioner erroneously cancelled the bank
guarantees without proper scrutiny and verification of
documents and further that he also failed to notice that in
respect of three Shipping Bills differential duty was not
realized from the importer. In the same breath, however, the
Disciplinary Authority also goes to give a finding that charge
of lack of integrity against the petitioner could not be
sustained, however, the Disciplinary Authority found
misconduct against the petitioner warranting action under
Rule 9 of the Pension Rules, 1972 and accordingly passed the
order of punishment dated 26th April, 2013.
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21. For considering the issues which have emerged in this
petition, for our consideration and decision, it will be apposite
to extract Rule 3 of the Conduct Rules, 1964, which is as
under: -
"3. General. - (1) Every Government servant shall at all
times--
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which 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 organization which
may influence him in the performance of his official
duty;
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(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) maintain discipline in the discharge of his duties
and be liable to implement the lawful orders duly
communicated to him;
(xx) maintain confidentiality in the performance of his
official duties as required by any laws for the time
being in force, particularly with regard to
information, disclosure of which may prejudicially
affect the sovereignty and integrity of India, the
security of the State, strategic, scientific or
economic interests of, the State, friendly relation
with foreign countries or lead to incitement of an
offence or illegal or unlawful gain to any person;
(xxi) perform and discharge his duties with the highest
degree of professionalism and dedication to the
best of his abilities.
(2)(i) Every Government servant holding a supervisory
post shall take all possible steps to ensure the integrity
and devotion to duty of all Government servants for the
time being under his control and authority;
(ii) No Government servant shall, in the performance
of his official duties, or in the exercise of powers
conferred on him, act otherwise than in his best judgment
except when he is acting under the direction of his official
superior;
(iii) The direction of the official superior shall
ordinarily be in writing. Oral direction to subordinates
shall be avoided, as far as possible. Where the issue of
oral direction becomes unavoidable, the official superior
shall confirm it in writing immediately thereafter.
(iv) A Government servant who has received oral
direction from his official superior shall seek confirmation
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of the same in writing as early as possible, whereupon it
shall be the duty of the official 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 of him shall be deemed to be lacking in devotion
to duty within the meaning of clause (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 power and responsibilities."
22. The petitioner was charged in terms of Rule 3(1)(i),
3(1)(ii) and 3(1)(iii) of the Conduct Rules as quoted above.
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
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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 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, as discussed above. Hence, 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.
24. So far as Rule 3(1)(ii) of the Conduct Rules, 1964 is
concerned, it mandates that every government servant shall
at all times maintain devotion to duty and any breach thereof
will amount to misconduct; however, Rule 3(1)(ii) has to be
read with the aid of Explanation-I appended to Rule 3(2) of
the Conduct Rules, 1964, which reads as under: -
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"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 of him shall be deemed to be lacking in
devotion to duty within the meaning of clause (ii) of sub-
rule (1)."
If Rule 3(1)(ii) is read in conjunction with Explanation-I, as
extracted above, an officer can be said to be lacking in
devotion to duty only if there is some finding based on
available records that he has habitually failed to perform the
task assigned to him within the timeframe and with the
quality of performance expected of him.
So far as the facts in the instant case are concerned,
there is nothing on record; neither is there any finding
recorded by the Inquiry Officer or by the Disciplinary Authority
that the petitioner was habitual of failing in performance of
the tasks assigned to him within the timeframe for the
purpose and with the quality of performance expected of him.
The petitioner was charged for solitary act of cancellation of
bonds and bank guarantees without proper scrutiny and
verification of documents put up before him, however, the
explanation given by the petitioner was that he cancelled the
bonds and bank guarantees on the recommendation of the
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Appraisal Officer. Apart from the solitary incident in terms of
the charge memorandum, nothing is available on record which
may establish the charge of the petitioner having failed
habitually in performance of the tasks assigned to him.
25. The Disciplinary Authority, however, has held the
petitioner guilty of the charge of 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
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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 of grave
misconduct or negligence and (ii) such misconduct causes
pecuniary loss to the government. From a perusal of the
Inquiry Officer's report as also the findings recorded by the
Disciplinary Authority in the punishment order dated 26 th
April, 2013, breach of either Rule 3(1)(i) or 3(1)(ii) or 3(1)(iii)
of the Conduct Rules, 1964 is not made out. There is no
finding on record relating to pecuniary loss caused on account
of the alleged misconduct of the petitioner in the order of
punishment dated 26th April, 2013. In absence of finding of
proof of charge of pecuniary loss to the government and also
because on the basis of material available on record of the
departmental proceeding, no breach of Rule 3(1)(i), 3(1)(ii)
and 3(1)(iii) of the Conduct Rules, 1964 is found, the
impugned order passed by the Disciplinary Authority dated
26th April, 2013 inflicting punishment of recovering 10% of
monthly pension for a period of three years, in our opinion, is
not sustainable. While holding that the impugned order of
punishment is not sustainable, we are conscious of the fact
26-WP-2390-2022
that in exercise of power of judicial review under Article 226
of the Constitution of India, this Court would not interfere in
the findings or even in the decision of the Disciplinary
Authority, however, it is a case where punishment has been
awarded without there being any finding in respect of either
(i) pecuniary loss to the government or (ii) breach or violation
of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Conduct Rules,
1964 for which the petitioner was charged, which calls upon
us to interfere in the impugned order of punishment. The
Tribunal, however, has utterly failed to appreciate the
aforesaid aspects of the matter specially the fact that neither
the charge of violation of Rule 3(1)(i), 3(1)(ii) or 3(1)(iii) of
the Conduct Rules, 1964 was proved nor any charge of
pecuniary loss to the government was found proved by the
Disciplinary Authority.
28. For the reasons given above, the writ petition is allowed
and the order of punishment dated 26th April, 2013 is hereby
quashed. The judgment and order dated 23rd January, 2020 is
also hereby quashed.
29. Consequences to follow.
30. There shall be no order as to costs.
Digitally
signed by
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2024.02.06
09:49:23
+0530
