Ravish V. Nayak vs Union Of India And Ors

The facts of the case based on the submission made by the applicant in the OA and the reply statement is as follows:

While the applicant was working as Superintendent of Central Excise in Mysore Commissionerate, Mysore during 2001, disciplinary proceedings were initiated against him under Rule 14 of the CCS(CCA) Rules, 1965, framing two articles of charge vide charge memorandum dtd.11.12.2003(Annexure-A1) which reads as follows:

(a) The applicant while functioning as Superintendent of Customs, Baggage Air Cargo Complex, Bangalore has failed to discharge his duties as a reasonable officer with due diligence and care with regard to the assessment of unaccompanied baggage & implementation of Baggage Rules, inasmuch as he assessed & allowed the clearance of 10 UB (Unaccompanied Baggage) bills of Sri.Mohanlal Gautam Kumar and 1 UB bill pertaining to Sri.Anand Balasubramani without proper examination of the consignments, thereby instrumental in undervaluing the goods resulting in huge revenue loss to the exchequer.

(b) The applicant has failed to maintain absolute integrity and devotion to duty inasmuch as he has connived with the importers namely, Sri.Mohanlal Gautam Kumar and Sri.Anand Balasubramani and assisted the said importers in the clearance of non-bonafide baggage of restricted goods viz., movies recorded CDs and DVDs in English, Hindi & Tamil without import license or certificate issued by the proper authority. Further the applicant also connived with Sri.Anand Balasubramani in the clearance of prohibited VCDs (with the title 'OSAMA BIN LADEN') thereby abetted the contravention of Section 11 of Customs Act, 1962 read with Exim Policy 1997-2002 by the said importer.

On denial of the charges by the applicant, an inquiry was held into the same and the Inquiry Officer(IO) has submitted his report on 3.2.2006(Annexure-A2) holding that the articles of charge were not proved against the applicant, with a rider that a part of the charge that the Charged Officer(CO) has failed to give written instructions to the Inspector for open examination of cargo is proved. The 4th respondent disagreeing with the findings of the IO, issued a show cause notice dtd.5.2.2009(Annexure-A3) to the applicant directing him to file his submissions, if any, within 15 days. The applicant submitted his reply to the findings of the respondent No.4 on 1.4.2009(Annexure-A4). Thereafter the 4th respondent issued an order dtd.20.4.2010(Annexure-A5) imposing the penalty on the applicant reducing his pay to the minimum in the revised PB-2 with GP Rs.4800/- with immediate effect for three years and that during the period the reduction will have the effect of postponing his future increments of pay. The appeal dtd.4.6.2010(Annexure-A6) preferred by the applicant was considered by the 3rd respondent after an inordinate delay of 4 years by order dtd.26.2.2014(Annexure-A7) modifying the penalty to that of reduction in pay to the minimum effective from 20.4.2010 for two years and holding that the applicant is entitled to all consequential benefits with the further stipulation that the applicant will not earn increments of pay during the above period. On expiry of the period, the reduction will not have the effect of postponing his future increments of pay. A revision petition dtd.15.4.2014(Annexure-A8) submitted to the 2nd respondent was rejected vide order dtd.10.8.2017(Annexure-A9). In the meantime, he retired on 31.03.2016 from the office of respondent No.4 as Assistant Commissioner of Service Tax on attaining the age of superannuation.

The applicant submits that the charges were vague and lacked in material particulars. The 1st article of charge states that the applicant allowed the clearance of 10 unaccompanied baggage of Sri.Mohanlal Gautam Kumar and one unaccompanied baggage of Sri.Anand Balasubramani without assessment. The imputations of misconduct indicate that on 15.10.2001 there was only one baggage of Sri.Mohanlal Gautam Kumar required to be assessed. The details of other 9 baggage and the date, time, venue of its clearance etc. are not known. The amount of alleged revenue loss has not been stated. The IO has rightly concluded that the articles of charge were not proved against the applicant. However, the finding given by the IO that 'a part of charge that the charged officer has failed to give written instructions to the Inspector for open examination of cargo is proved' is unwarranted. The IO has not stated whether the applicant was under an obligation to give such written instructions. It is not known whether the applicant has violated any of the official instructions in not doing so. Therefore, such a finding is totally unwarranted and uncalled for and beyond the scope of the inquiry officer. The IO is required to give findings on the allegations of misconduct and not to make any unwarranted additional allegations on the charged employee. In any event, the disciplinary authority cannot take advantage of such unwarranted remarks to hold that the charges are proved. The crucial question to be considered was as to whether the UB form No.4335 dtd.15.10.2001 was cancelled or not. The assertion made by the applicant is that he had cancelled the same and that the form was in triplicate and the same was in the custody of the department and the department ought to have produced the same before the IO. The records disclose that the main form containing the cancellation was not produced in the inquiry. As such the disagreement note by the disciplinary authority on this count lacks credibility. The view taken by the disciplinary authority in the disagreement note that even though the evidence of two importers was not recorded as they failed to attend the inquiry, their statements recorded under Section 108 of the Customs Act should have been considered in support of the charge is erroneouos. The IO is bound to consider the statements made before him in the inquiry only. The conclusions drawn by the disciplinary authority based on the statements made by the importer on 23.3.2002 which were not subjected to cross examination, are contrary to law. So also, the self exculpatory statements made by the Charged Officer-II against the applicant cannot be relied upon at its face value. The appellate authority has failed to consider the appeal in accordance with the provisions of Rule 27 of the CCS(CCA) Rules, 1965, inasmuch as he has failed to consider as to whether the inquiry was held in accordance with the rules, whether the findings are based on evidence, whether the penalty imposed is excessive etc. and arrive at just decision. On the other hand, the appellate authority has failed to discharge his statutory duties a per rules and arrived at erroneous conclusions though he has granted a partial relief to the applicant in reducing the penalty. Hence, the orders at Annexure-A5, A7 & A9 are liable to be set aside and the respondents are directed to extend the consequential benefits to the applicant.

The respondents, on the other hand, have submitted in their reply statement that a disciplinary proceeding was initiated against the applicant under Rule 14 of CCS(CCA) Rules, 1965 on two articles of charge, and the charges have been confirmed on the basis of statements of the importers that the continuity of clearances and all the previous nine consignments of the said importer have been cleared only during the time when the applicant was on duty as Superintendent Baggage Counter. It is very much on record that all the consignments were cleared by the applicant. Ample evidence exists to prove that the applicant had cleared the earlier 9 consignments and prove alleged offence as departmental proceedings are on the basis of preponderance of probability. The order is very much legal, valid and sustainable in law. The IO has concluded that the charges of not giving written instructions to CO-II stand as proved on the basis of documentary evidence such as EX-S III(a) to EX-S III(i) and submission of CO-II. It is wrong to say that the finding is unwarranted and beyond the scope of the IO since it is a part of the charge made against the CO-I. The DA has taken into cognizance the evidences placed at his disposal and rightly concluded the charges as proved which resulted in imposing punishment of reductions of pay to the minimum of PB-2 scale for a period of three years and during that period he will not earn increments and the reduction will have effect of postponing the future increments. On appeal, the penalty period was modified to that of two years and thereafter entitled for all consequential benefits. The question of UB form 4335 being cancelled will not arise as there were no mark on the UB form on both the duplicate and triplicate copies and no endorsement to the effect that the UB form specially showing assessment stood cancelled. The plea of appellant that option for reassessment of goods is not possible as assessment of value and duty was made after an examination report of the goods was given. Further, if there was a bonafide intention of the CO for cancellation of the UB, he should have brought it to the notice of his immediate higher ups which is not available in the records. The documents of cancellation of MSIL Gate pass is not a proof to prove the UB assessment 4335 stands cancelled. Besides, reassessments in this situation will not arise. Hence, chain of events has led to prove that the plea put forth by the applicant is an afterthought. There were sufficient corroborative evidence in the form of statement of co accused along with the importers statements to prove that there is an element of connivance. The unretracted statement of importers given under Section 108 of Customs Act 1962 stands as evidence to prove charges. The departmental proceedings is on the basis of preponderance of probability hence, the DA/Appellate authority's order is very much legal, valid and sustainable in law. There was no judgment of error either on the part of the DA or the Appellate Authority. The DA and appellate authorities have taken into cognizance the evidences placed at their disposal in a thorough manner. The evidence on record has been considered in detail and has been put to test of time and only thereafter decisions have been arrived at. It is wrong to say that the appellate authority has failed to consider the appeal in accordance with provisions of 27 of the CCS(CCA) Rules 1965 and passed orders mechanically. Hence, the OA being devoid of merit is liable to be dismissed.

We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. The issue in this case is in a very small compass. The applicant was working as Superintendent of Customs in the Air Cargo Complex and was charged for dereliction of duty in undervaluing the goods resulting in huge revenue loss to the exchequer to the tune of about Rs.21.45 lakhs as stated in Annexure-A7. The inquiry officer held the charges not proved which was not accepted by the disciplinary authority who imposed a punishment of reduction to the minimum in the pay band for a period of 3 years. On appeal this period was reduced to two years by the appellate authority and review petition filed by the applicant was dismissed. A parallel criminal case filed by the CBI resulted in the acquittal of the applicant. The respondents have come to the conclusion relating to the dereliction of duty based on the circumstances of the case in which the preventive unit officers of the respondents had discovered at two sets of consignments under the charge of the applicant on the date concerned had been assessed for very less duty. The department had finally confiscated the two consignments with the value of about Rs.35 lakhs and CESTAT, Bangalore appears to have imposed a penalty on one of the consignments. In the case of the other confiscation, no appeal was filed. The process of enquiry had given adequate opportunity for the applicant to present his case. The applicant would claim that he had cancelled one of the UB bills and therefore he was not responsible. The respondents have discussed the case in detail in their orders and have correctly pointed out that if the contention of the applicant has to be accepted, then the concerned bills should have been properly cancelled and reassessment procedures initiated by him which was not the case. The applicant's contention that he should be exonerated based on his acquittal in the criminal case has been dealt with in detail and not accepted by the respondents for the reasons which they have spelt out in detail in their orders. The punishment meted out to the applicant is also not excessive in any sense and therefore, we find no merit in the OA. Dismissed. No costs.