Delhi High Court
Uoi & Ors. vs J.P. Singh on 17 December, 2013
Author: Gita Mittal
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.11881/2009 & CM No.12008/2009
Date of decision : 17th December, 2013
UOI & ORS. ..... Petitioners
Through Mr.R.V. Sinha, Adv. with Mr.P.K. Singh,
Adv.
versus
J.P. SINGH ..... Respondent
Through Dr.Ashwani Bhardwaj, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
GITA MITTAL, J. (Oral)
1. The petitioner has assailed the order dated 19th November, 2008 passed in
OA No.1690 of 2007 by the Central Administrative Tribunal, Principal Bench,
New Delhi. By this judgment, the Central Administrative Tribunal had held
that there was unexplained delay and laches in initiating disciplinary
proceedings against the present respondent. As a result, by the impugned order,
the Tribunal has quashed the memorandum dated 19th May, 2006 whereby the
declaration was made by the appointing authority to hold the disciplinary
inquiry against the respondent under Rule 14 of the CCS (CCA) Rules, 1965.
2. The respondent was an officer of the 1992 batch of the Indian Revenue
Service of the Customs & Central Excise Services. During the relevant period,
the respondent was posted as an Assistant Commissioner, with the service.
3. Investigations were initiated by the Directorate of Revenue Intelligence
(DRI) at Mumbai against five benami companies namely M/s R.S. & Company,
M/s Stitch & Style, M/s Himgiri Overseas, M/s Deepshikha Overseas and M/s
Saharanpur Handicrafts into fraudulent exports as well as fraudulent claim of
duty draw backs. Based on such investigation, a show cause notice dated 3 rd
December, 1999 was issued by the DRI under Section 124 of the Customs Act,
1962 read with Rule 16 of the Customs, Central Excise Duties & Service Tax
Drawback Rules, 1995 for imposition of penalty under Section 114 (i), 114 (ii)
and 117 of the Customs Act, 1962. The allegation was that the respondent had
entered into conspiracy with one Rajesh Kumar for carrying out fraudulent
exports by wrongfully declaring higher value of old and used garments for
making the claim of duty drawback.
4. On the 7th of March, 2000, the respondent was placed under suspension
which was revoked in March, 2001.
5. The respondent replied to the cause notice issued under the Customs Act
and also made his written submissions on 15 th October, 2001. A fine of
Rs.2,00,000/- was imposed by an order dated 19th August, 2003 upon the
respondent. This order imposing the fine was assailed by the respondent before
the Custom Excise & Service Tax Appellate Tribunal (CESTAT). The penalty
was initially stayed by an order passed on 29th October, 2003. The respondent's
appeal was accepted by CESTAT by the final order passed on 2nd November,
2005 and the order imposing penalty upon him was quashed.
It is undisputed before us that this order has attained finality.
6. In addition thereto, during this period, on 25 th September, 2002, the
petitioner was promoted as a Joint Commissioner as well.
7. The petitioners thereafter issued the memorandum dated 19th May, 2006
intending to hold a disciplinary inquiry against the respondent under Rule 14 of
the CCS (CCA) Rules, 1965 and informed him of the charges which pertained
to the afore-noticed export transaction only. The respondent submitted a reply
on 1st September, 2006 and nothing happened thereafter for a period of over one
and a half years.
8. It is to be noted that the respondent assailed the memo dated 19 th May,
2006 before the Central Administrative Tribunal by way of OA No.1690 of
2007. More than six months after the filing of the petition before the Central
Administrative Tribunal by the respondent, the petitioners issued an order dated
4th March, 2008 appointing an inquiry officer as well as a presenting officer to
conduct disciplinary proceedings against the respondent.
9. We are also informed by Dr. Bhardwaj, learned counsel for the
respondent that the Central Bureau of Investigation also conducted investigation
into the allegations made by the petitioner. Nothing incriminating was found
against the present respondent and no criminal case was initiated against him.
10. The respondent had challenged the order dated 19th May, 2006 before the
Tribunal inter alia on the ground that the petitioners were contemplating
conducting a departmental promotion committee for their non-functional
selection grade in 2006 and the respondent was in the zone of consideration.
The impugned memorandum dated 19th May, 2006 was issued only to interdict
this consideration of the respondent.
11. The respondent has also contended that the memorandum of charge-sheet
dated 19th May, 2006 was predicated on allegations which were identical to the
show cause notice dated 3rd December, 1999.
12. The respondent has drawn our attention to the order dated 21 st November,
2005 passed by the CESTAT wherein specific findings have been returned to
the effect that there was no proof of any monetary flow to the respondent and
that there was no other evidence as well against the respondent. The CESTAT
has also noticed that there was no proof of any personal interest on the part of
the respondent and that he had no role at all to play in respect of export of the
goods. Our attention has also been drawn to the action of the respondent in
stopping the payment of claim to the disputed companies and also the dues of
the respondents which show that there was no engagement of the respondent
with the companies in question.
13. An important circumstance which has weighed with the Central
Administrative Tribunal in accepting the challenge by the respondent is the fact
that the allegations pertained to transactions of the year 1998 while the charge-
sheet was issued as back as in the year 2006 based on material which was in the
power, possession and knowledge of the petitioners in the year 1998 as well.
The case was investigated by two agencies, firstly the Department of Revenue
Intelligence & thereafter by the Central Bureau of Investigation which had not
found any culpability of the respondent in the alleged transactions. The
respondent has also averred prejudice on account of the delay as well as the fact
that he had not had any opportunity to cross-examine such witnesses whose
statements were recorded under the Customs Act and further that at this highly
belated stage, no witnesses would be available at present to support his defence.
14. We find that there was delay not only in initiation of the disciplinary
proceedings and issuance of the charge-sheet, but also gross and unexplained
delay in appointment of the inquiry officer which was effected only on 4 th
March, 2008. The respondent has submitted that the purpose of the inquiry was
to harass him despite his innocence and the same is devoid of any basis on
merit.
15. It is noteworthy that with regard to the same transaction, the petitioners
issued similar belated charge-sheets to other customs employees as well. Our
attention is drawn also to fact that with regard to the same transaction, the
petitioners had issued a memorandum of charge-sheet to one Joseph Kuok, then
deployed as a Superintendent with Customs. The memorandum of charges was
issued to him on 15th January, 2010 which he challenged by way of OA
No.2727 of 2010 before the Central Administrative Tribunal. Joseph Kuok's
challenge was based on grounds identical to that on which the respondent
challenged the petitioner's action. The Tribunal accepted Joseph Kuok's
challenge by way of an order dated 16th May, 2011 holding that the disciplinary
proceedings were untenable because of unexplained and unwarranted delay in
initiation of the departmental inquiry against Joseph Kuok. This order of the
Tribunal was not challenged by the petitioners and has attained finality.
16. A third person namely Hari Singh who was working as an Inspector with
the Customs department at the relevant time, was also issued a similar
memorandum of charges in respect of the same transaction. The present
petitioners (respondents in the challenge by Hari Singh) relied on the same
show cause notice under the Customs Act and the inquiry report as in the
present case. Hari Singh's challenge to the memorandum of charges before the
Central Administrative Tribunal had also succeeded by the judgment dated 8th
January, 2013 passed in RA No.27 of 2012 in OA No.1844 of 2011 passed by
the Central Administrative Tribunal.
17. The present petitioners challenged this judgment of the Tribunal by way
of WP (C) No.4245 of 2013 which was dismissed by a judgment dated 23 rd
September, 2013. The findings of this court that there was inordinate and
unwarranted delay in commencement of the disciplinary proceedings against the
respondent were not challenged by the petitioner before any other court and the
same have also attained finality.
18. We find that detailed reasons have been recorded by the Tribunal in the
order dated 19th November, 2008 assailed by way of the present writ petition.
The very issues on which the writ petition is based, were raised before us and
were decided by us in the judgment dated 23 rd September, 2013 passed in WP
(C) No.4245 of 2013 entitled Union of India &Anr. Vs. Hari Singh. The
challenge by the petitioners in the instant case is identical to that pressed by
Hari Singh in that case.
19. The Tribunal has noted that the respondents have not been able to
adequately explain the inordinate delay in initiation of the charge-sheet which
would cause prejudice to the defence of the respondent. The petitioners have
not been able to place any explanation for the delay which has ensued before us
as well.
20. Other circumstances including the fact that the respondent was promoted;
the order quashing the penalty which had been imposed upon the respondent
were accepted by the petitioner herein; as well as the fact that the Central
Bureau of Investigation found no culpability of the respondent also lend
substance to the case of the respondent. We find no merit in the challenge
which has been laid to the order of the Central Administrative Tribunal by way
of the present writ petition.
21. This writ petition and application are, therefore, dismissed with costs
which are quantified at Rs.25,000/-. The costs shall be paid to the respondent
within eight weeks from today.
(GITA MITTAL)
JUDGE
DECEMBER 17, 2013 (DEEPA SHARMA)
aa JUDGE
