Syed Dawood Hussain vs The Government of India

Elipe Dharma Rao, J.—The petitioner has filed this writ petition for the issuance of a writ of certiorari to call for the records relating to the

order in O.A. No. 742 of 2003 on the file of the Central Administrative Tribunal, Madras Bench, dated 05.07.2004 and to quash the same.

The case of the petitioner is that he was working as a Preventive Officer in the Office of the Customs House, Chennai and he retired on

30.04.1998 on attaining the age of superannuation as per order No. 117/98 dated 18.04.1998. It is the further case of the petitioner that just one

day prior to the retirement, he was served with a charge memo by the 2nd respondent for the incident which took place on 02.11.1992.

According to him, he was charge sheeted for the incident occurred on 02.11.1992 under Article-I that while he was working as Preventive Officer

in Chennai Custom House, he has given pass for shipment order on 02.11.1992 in respect of shipping bill No. 7146 dated 29.10.1992 filed by

Sanco Trans, Custom House Agent, on behalf of M/s. Precot Mills Ltd., Coimbatore, without being duly authorised by his superior officers,

because as per the posting Register, on 02.11.1992, though he was posted at Central Berth (CB) from 2.00 p.m. to 9.45 p.m. for duty, he has

given the pass for shipment order on a shipping bill for a vessel berthed at Bharathi Docks and therefore, the petitioner has failed to maintain

absolute integrity and devotion to duty and thereby he has contravened the provisions of Rules 3(1)(i)(ii) of CCS (Conduct) Rules 1964 and

rendered himself liable for action under Rule 14 of CCS (CCA) Rules, 1965. According to the petitioner, under Article II, he was charged for

giving pass for shipment order and signed it on 02.11.1992, whereas the vessel M.V.Tiger Star sailed on 31.10.1992 and the pass for shipment

order has been given carelessly without verifying whether the vessel was actually berthed or not and he has also given pass for shipment order

without verifying that the container for which the above said order was given was actually loaded into the vessel or not and the purpose of giving

this order by the Preventive Officer is basically a preventive or anti-smuggling function and thus the petitioner has failed to maintain absolute

integrity and devotion to duty and thereby he has contravened the provisions of Rules 3(1)(i) and 3(i)(ii) of CCS (Conduct) Rules 1964 and

rendered himself liable for action under Rule 14 of CCS (CCA) Rules, 1965.

It is the further case of the petitioner that the charge sheet was issued on 14.04.1998 and served on him on 29.04.1998 and in the meanwhile,

he has attained the age of superannuation and by order dated 18.04.1998, he was allowed to retire from service and the petitioner retired from

service on 30.04.1998. According to the petitioner, before the issue of charge memo, a preliminary enquiry was conducted u/s 108 of the

Customs Act, wherein one Mr. Ram Kumar, the General Manager, Marine Container Services, in his statement, has admitted that on 30.10.1992

at about 11.00 hours, the container was placed in the vessel without the shipping bill as per the instruction of M/s.Transword Shipping Agency.

According to the petitioner, he has not attended duty on 30.10.1992 and 31.10.1992 but he has attended duty only on 02.12.1992 and one Mr.

Jannathan, Preventive Officer, who attended duty on 30.12.1992 between 6.00 a.m. and 2.00 p.m. and Mr. V.S.D.Raja, who attended duty on

31.12.1992 between 2.00 p.m. and 9.00 p.m. were responsible for the above said misconduct. According to him, if the container was loaded in

the ship on 30.10.1992 either at 12.34 p.m. as per Port Trust tally sheet or at 11.00 a.m. as per the statement of Mr. Ram Kumar is true, then the

aforesaid persons were responsible for loading the container in the ship without the shipping bill, but no action was taken against them by the

respondents.

According to the petitioner, based on the enquiry officer''s report, the 1st respondent imposed the punishment of 50% cut in the monthly pension

for a period of 5 years. Aggrieved of the said order, the petitioner has approached the Central Administrative Tribunal, Chennai, Branch, by filing

O. A. No. 742 of 2003.

Before the Tribunal, the petitioner has raised the ground of delay in completing the disciplinary proceedings for about eight years starting from

14.04.1998 till the date of imposition of the punishment and the said delay was not explained by the respondents, though the respondents have

relied on Rule 9 of the Central Civil Services (Pension) Rules. But no detailed order was passed reserving the right to proceed with the disciplinary

proceedings after retirement as per the deeming clause incorporated in the said Rules.

A reply affidavit was filed by the respondents before the Tribunal stating that the petitioner, while working as a Preventive Officer in Chennai

Custom House, has given pass for the Shipment Order on 02.11.1992 in respect of Shipping Bill No. 7146 dated 29.10.1992 filed by M/s.Sanco

Trans, Custom House Agents on behalf of Precot Mills Ltd., Coimbatore, and in this connection, a charge memo was issued to him on

02.04.1998, wherein two articles of charges were framed. It is further stated that the 1st article was that the ""pass for shipment order"" was given

by the petitioner without being duly authorised by his superiors because as per the Posting Register, on 02.11.1992, he was posted at Central

Berth (CB) from 2.00 p.m. to 9.45 p.m. for duty, but he gave the ""pass for shipment order"" on a shipping bill for a vessel berthed at Bharathi

Docks and the 2nd article of the charge was that the petitioner has given the pass for shipment order and signed it on 02.11.1992, whereas the

vessel M.V.Tiger Star sailed on 31.10.1992 and the pass was given carelessly without verifying whether the vessel was actually berthed or not and

without verifying that the container for which the above said order given was actually loaded into the vessel or not. It is further stated that after the

denial of charges, an enquiry was conducted and the enquiry report was submitted on 14.08.2000 and as per the enquiry report, they have not

pressed Article-I of the charge and the Article-II of the charge was proved beyond doubt. It is further submitted that the enquiry report was

forwarded to the Director General of Vigilance on 19.09.2000 and the CVC advised imposition of suitable cut in pension of the petitioner, who

made his submissions on the enquiry report on 24.01.2002 and along with the written submissions and oral submissions of the charged officer, the

findings of the Original Disciplinary Authority were forwarded to the Ministry on 06.06.2002. It is further stated in the reply affidavit that the

President of India, after considering the case of the petitioner, imposed the penalty in terms of Rule 9 of CCS (Pension) Rules, 1972, and ordered

to impose 50% cut in monthly pension to the petitioner herein for a period of five years, which is impugned in the original application filed before

the Tribunal. It is further submitted that the case was investigated and referred to Commissioner (Vig.), New Delhi, on 12.08.1993 and further

investigation was taken up by the Director General (Vig.), South Zonal Unit and on receipt of the first stage advice No. 98/CEX/035 dated

21.04.1998, for intimation of major penalty proceedings under Rule 14 of CCS (CCA) Rules, 1965, charge sheet was issued to the petitioner on

29.04.1998. It is further stated that for all the above said facts, there is no delay on the part of the respondents.

Against the aforesaid order of imposition of 50% cut in the monthly pension to the petitioner, he has approached the Tribunal by filing O.A. No.

742 of 2003, which was dismissed by order dated 05.07.2004, against which, the present writ petition is filed.

On the basis of the above stated facts and circumstances of the case, the learned Senior Counsel appearing for the petitioner contended that

among the two charges framed on the basis of the alleged incident occurred on 30.10.1992, the 1st charge, viz., while the petitioner was working

as Preventive Officer in Chennai Custom House, he has given the pass for shipment order on 02.11.1992 in respect of shipping bill No. 7146

dated 29.10.1992 filed by Sanco Trans, Custom House Agent, on behalf of M/s. Precot Mills Ltd., Coimbatore, without being duly authorised by

his superior officers, because as per posting Register for 02.11.1992, though he was posted at Central Berth (CB) from 2.00 p.m. to 9.45 p.m.

for duty, he has given the pass for shipment order on a shipping bill for a vessel berthed at Bharathi Docks, was withdrawn by the respondents on

account of the fact that there was some confusion regarding the posting of the delinquent/petitioner whether at Central Berth or at Container Yard.

The learned senior counsel has further contended that as both the charges are interconnected and when the 1st charge is not pressed, the

Presenting Officer ought not to have proceeded with the enquiry on the basis of the 2nd charge, and thereby the enquiry officer should not have

acted in a biased manner. It is further contended that the statement of one R. Ram Kumar, the General Manager of Marine Container Services,

recorded by the Enquiry Officer that on 30.10.1992 at about 11.00 hours, the container was placed in the vessel without the shipping bill as per

the instruction of M/s.Transword Shipping Agency, shows that the petitioner, who was not on duty on 30.10.1992 and 31.10.1992, but has

attended duty only on 02.12.1992, is innocent and the container was placed into the ship as per the instructions of the General Manager, Ram

Kumar and on the date of incident, two persons viz., one Mr. Jannathan, Preventive Officer, has attended duty on 30.10.1992 between 6.00 a.m.

and 2.00 p.m. and Mr. V.S.D. Raja has attended duty on 31.10.1992 between 2.00 p.m. and 9.00 p.m. and hence, the finding given by the

respondents is not a valid finding and it is passed in violation of the rules under the Customs Act. The learned Senior Counsel has further

contended that the respondents, instead of proceeding against the said Ram Kumar and the two other officers, who were on duty on 30.12.1992

and 31.12.1992 and who were responsible for the loading of the container into the ship, have wrongly proceeded against the petitioner, who

discharged his duties over a period of 34 years without any malafide intention.

The learned Senior Counsel appearing for the petitioner further contended that the order passed by the respondents gets vitiated mainly on the

ground of delay, since for the incident occurred on 30.10.1992, after conducting preliminary enquiry, the report was submitted only on

14.04.1998 and according to the petitioner, it was served on him only on 29.04.1998, i.e., after a lapse of six years and thereafter, the punishment

of 50% cut in his pension for a period of 5 years has been imposed on him. According to the learned Senior Counsel, though the enquiry report

was submitted on 14.08.2000, the order of punishment was imposed on the petitioner only on 04.08.2003, after a period of three years and

hence, there is a considerable delay in initiating the disciplinary proceedings for the incident occurred on 30.10.1992 till the date of imposing

punishment in the year 2003. In support of the said contention, the learned Senior Counsel drew the attention of this Court to the judgment of the

Hon''ble Supreme Court in P.V. Mahadevan v. MD. T.N. Housing Board (2005) 6 S.C.C. 636, wherein there was a delay of ten years in

initiation of departmental enquiry against the appellant and no convincing explanation was given by the respondent employer with regard to the said

delay and the Hon''ble Supreme Court, in the circumstances of the case, by holding that allowing the respondent to proceed further with

departmental proceedings at this distance of time would be very prejudicial to the appellant, who already suffered enough and more on account of

the disciplinary proceedings, allowed the appeal filed by the delinquent and further held that the appellant is entitled to all retiral benefits.

We have heard the learned Central Government Standing Counsel on the above contentions and perused the materials available on record.

Though it is stated that the investigation and the enquiry was conducted by the Director General of Investigation, it is evident from the

documents that the charge sheet was served on the petitioner one day prior to his retirement and we are unable to agree with the reasons stated by

the respondents that there is no delay in initiating the disciplinary proceedings against the petitioner and concluding the same and attaining its finality

by imposing the above said punishment.

With regard to invoking of Rule 9 of the Central Civil Services (Pension) Rules, it is very much relied on by the respondents that as per Rule

9(2)(a) of the Central Civil Services (Pension) Rules, the departmental proceedings referred to in Sub-rule (1), if instituted while the Government

Servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be

deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same

manner as if the Government servant had continued in service. To that effect, the respondents relied on a decision of the Supreme Court reported

in CDJ 2008 SC 594 (Union of India and Ors. v. Ganesh Prasad Sharma), wherein the Supreme Court considered the case of one Kaniya Lal,

who was retired on attaining superannuation with effect from 28.02.2002, and in the said case, as no departmental proceedings were initiated

against the said Kaniya Lal, the Tribunal was of the view that the Departmental Proceeding instituted against Shri Ganesh Prasad Sharma,

respondent before the Supreme Court, is also not tenable in law and set aside the disciplinary proceedings, which, according to the Hon''ble

Supreme Court, cannot be considered to be legal, as the proceedings against the said respondent before the Supreme Court was instituted on

25.02.2003 and he retired on 28.02.2003, after the disciplinary proceedings were initiated against him, and the same would show that when the

departmental proceeding was instituted against the respondent before the Supreme Court, on 25.02.2003, he was very much in service.

We have gone through the judgment of the Hon''ble Supreme Court referred to above by the learned Counsel appearing for the respondents

and we are unable to apply the above judgment to the facts and circumstances of the present case. In the present case on hand, though it is

contended that the proceedings are not initiated against the two officers, who attended duty on 30.10.1992 and 31.10.1992, but there are other

strong grounds, viz., there is a considerable delay in initiating the disciplinary proceedings against the petitioner and moreover, when it is admitted

by one Ram Kumar, General Manager of Marine Container Services, which was recorded by the Enquiry Officer, that on 30.10.1992 at about

11.00 hours, the container was placed in the vessel without the shipping bill as per the instruction of M/s.Transword Shipping Agency, it is not fair

on the part of the respondents to proceed against the petitioner, who has not attended duty on the date of incident. Further, there is an admission

made by the respondents to the effect that by virtue of issue of the bill, no contraband is transported and no prejudice is caused. Besides, under

two articles, charges were framed against the petitioner and because of the state of confusion of the Presenting Officer with regard to the

placement of the officer in a particular place, the respondents have not pressed the 1st article of charge. When both the Articles 1 and 2 are

interconnected and once the first article of charge is not pressed, automatically the 2nd article of charge has no legs to stand. Therefore, the

Department should not proceed with the enquiry and impose the above said punishment. Moreover, as seen from the facts and circumstances of

the case, the delay was occurred at the hands of the officers who have investigated the matter for almost six years. Even after submission of the

enquiry officer''s report on 14.08.2000, it took three years to impose punishment by the competent authority.

In view of the aforestated facts and circumstances of the case and the fact that the charge sheet was served one day prior to the retirement of

the petitioner, for the incident occurred on 30.10.1992, the order passed by the respondents is liable to be set aside and it is, accordingly, set

aside. Consequently, the order passed by the Tribunal in O.A. No. 742 of 2003 is also set aside. The writ petition is allowed. Connected

W.P.M.P. is closed. However, there will be no order as to costs.