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HIGH COURT OF DELHI
W.P (C) No. 6984/2009
JUDGMENT
Through: Mr.R.V. Sinha, Advocate with Mr. R.N Singh & Mr. A.S. Singh, Advocates.
Through: Ms. Vidushi Shubham, Advocate.
HON'BLE MR. JUSTICE VINOD GOEL VINOD GOEL, J.
1. Challenge in this writ petition is to order dated 08.10.2007 passed by the Central Administrative Tribunal (in short ‘the Tribunal) in O.A No. 2850/2005 whereby the Tribunal set aside the penalty imposed on the respondent by the Disciplinary Authority vide order dated 21.04.2005 of reduction of pay by two stages from Rs.8,700 to Rs.8,300 in the pay scale of Rs.6500-10500 w.e.f. 01.05.2005 for a period of two years during which he was to earn no increment of pay.
2. Brief facts leading to the filing of the present petition are that the respondent while posted as Inspector at the Indira Gandhi International Airport, Delhi gave a false examination report in respect of Bill of Entry No. 724870 dated 21.12.1998 filed by M/s Intertrade Incorporated, Noida declaring the imported goods to be ‘Plastic 2017:DHC:3198-DB Buttons’ valued at Rs.56,531/- whereas on verification the packet was found to be intact and in its original packing. Goods on examination were found to be cellular phones along with batteries and chargers valued at Rs.74,80,000/-. The respondent was asked to show why a penalty under Section 17 of the Customs Act, 1962 should not be imposed on him. Prior to this show cause notice he was put under suspension vide order dated 15.01.1999. The show cause notice was adjudicated upon by the Commissioner of Customs, New Delhi who vide order dated 19/25.08.1999 imposed a penalty on the applicant but the same was set aside by the Custom, Excise & Service Tax Appellate Tribunal (in short ‘CESTAT’) vide order dated 12.07.2000. The suspension order was revoked vide order dated 18.08.2000 and the respondent re-joined his duties.
3. The respondent was also charge-sheeted under Rule 14 of the CCS (CCA) Rules, 1965 vide memo dated 01.08.2000 on the same charge i.e. false examination report entered by him with respect to Bill of Entry No.724870 dated 21.12.1998. On denial of the charges by the respondent, an inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was conducted by the Inquiry Officer who in his report concluded that the charges levelled against the respondent were not found to be proved. The Disciplinary Authority however, disagreed with the findings of the Inquiry Officer and imposed the penalty of reduction of pay by two stages in the pay scale of Rs.6500-10500 for a period of two years during which he was to earn no increment of pay. An appeal was preferred by the respondent before the Commissioner of Central Excise who rejected the same vide order dated 19.10.2005 against which the respondent filed the O.A No.2850/2005 in which the Tribunal set aside the penalty imposed by the Disciplinary Authority on the basis that the main document i.e. the Bill of Entry was neither made available to the respondent nor its copy was produced during the enquiry proceedings which caused prejudice to the respondent. The petitioners have impugned this order of the Tribunal in this petition.
4. Mr. R.V. Sinha, learned counsel for the petitioners had submitted that the Tribunal had exceeded its jurisdiction while exercising the power of judicial review. He places reliance on B.C Chaturvedi v Union of India (1995) 6 SCC 749 (paragraphs 12, 13 and 18) and Union of India & other v P. Gunasekaran (2015) 2 SCC 610 (paragraph 12, 13 and 23).
5. Learned counsel for the petitioners had further argued that the disagreement note by the Disciplinary Authority, order by the Disciplinary Authority as well as the Appellate Authority were all well-reasoned and based on the relevant material on record and therefore the Tribunal was not justified in quashing the order of the Disciplinary Authority and the Appellate Authority.
6. The learned counsel for the petitioners had further urged that the fact that the original Bill of Entry was not supplied to the respondent will have no bearing on the present case as the genuineness of that document was never questioned by the respondent and he could not prove any prejudice by the non-production of the original Bill of Entry. He placed reliance on a judgment of the Allahabad High Court titled as Raj Babu Agnihotri v Labour Commissioner 2002 (4) SCT 791 (paragraphs 4, 7, 8 and 9).
7. The learned counsel for the petitioners had further argued that the fact that the respondent was acquitted in the proceedings under the Customs Act, 1962 would have no bearing on the departmental enquiry as both are distinct in nature. The provisions of the Indian Evidence Act are not strictly applicable to disciplinary proceedings and the doctrine of preponderance of probabilities applies in such proceedings. There is no statutory rule or provision which stipulates that the departmental proceedings cannot be opened or initiated after a decision of acquittal in a criminal case arising from the same cause of action. He places reliance on S. Govinda Menon v Union of India & Anr. AIR 1967 SC 1274 (paragraphs 7 and 9) and Om Prakash v Delhi Society for Prevention of Cruelty of Animals & Ors. 2011 IX AD (DELHI) 741 (paragraph 11).
8. Per contra, Ms.Vidushi Shubham, learned counsel for the respondent had argued that there is no infirmity or illegality in the order of the Tribunal and therefore it does not warrant any interference.
9. The learned counsel for the respondent had argued that the Tribunal was correct in coming to the conclusion that prejudice was caused to the respondent as the original Bill of Entry on which the departmental proceedings have been rested, was neither made available to the respondent nor it’s copy was produced during the enquiry as the same was not traceable. Reliance is placed on the judgment of the Apex Court in Kuldeep Singh v The Commissioner of Police & Others
10. The learned counsel for the respondent had further argued that once the respondent was acquitted of all charges under the Customs Act, 1962, departmental proceedings under the CCS (CCA) Rules could not be initiated for the same cause of action. Reliance was placed upon the decision of the Tribunal in the matter of R.D Gupta v Union of India (O.A No. 2862/97) affirmed by this Court in W.P (C) NO. 876/2001 decided on 08.02.2001.
11. The learned counsel for the respondent had further argued without prejudice to the submissions enumerated above, under section 47 of the Customs Act, 1962, the proper authority for clearance of import consignments is the Superintendent, and that the Inspectors are entrusted to assist the Superintendent in the examination and other procedural aspects. Superintendent is to grant ‘out of charge’ only after being satisfied that the examination report is correctly entered/reported by the Inspector. In the present case the respondent was charged with entering a false examination report in the EDI system, therefore, it was mandatory upon the Department to have interrogated Mr. J.S. Juneja, Superintendent (Shed) before levelling charges which was neither done during preliminary investigation nor in the departmental proceedings. She submitted that this was in itself enough ground to quash the departmental proceedings.
12. We have gone through the records of the case and heard the learned counsel for the parties.
13. The first issue which we deem appropriate to settle is whether the respondent once having been acquitted of the charges under the Customs Act, 1962 can then be proceeded against in a departmental enquiry under the CCS (CCA) Rules on the same cause of action i.e. giving the false examination report allegedly entered by the respondent in respect to Bill of Entry No.724870 dated 21.12.1998 submitted by M/s Intertrade Incorporated, Noida. The Hon’ble Supreme Court in South Bengal State Transport Corpn. v. Sapan Kumar Mitra, (2006) 2 SCC 584 while dealing with the effect of acquittal in criminal proceedings in disciplinary proceedings on the basis of the same cause of action held as under:-
17. The crux of the matter is that whether the non-supply of the original Bill of Entry did in fact violate the principles of natural justice and cause prejudice to the respondent. The burden of proving such prejudice is upon the person who claims that prejudice is caused to him. In the present case the respondent has nowhere shown how prejudice was caused to him by the non-supply of the original Bill of Entry. This is not sufficient to say that non-supply of Bill of Entry caused prejudice to him but he is to further explain what prejudice was caused. The respondent in his written submissions dated 27.01.2017 submitted before this Court had simply stated that the Tribunal was correct in coming to the conclusion that prejudice had been caused by the non-supply of the original Bill of Entry. In his defence submitted before the Inquiring Authority on 29.10.2001 the respondent had, inter alia, stated that in the absence of the original Bill of Entry there is no proof that the impugned Bill of Entry was marked to him and processed by him. He stated that unless he had been shown hard copy of Bill of Entry No.724870 dated 21.12.1998, he cannot say whether he examined the consignment on 21.12.1998 at 04:43 PM. He stated that in the daily working sometimes it is not possible to keep the Password a secret. He stated that he did not change his Password since he joined Import Shed as he is not much aware of computer working. He stated that he did not reveal his Password intentionally but many people are around when he feeds the report and anybody can see the Password with a little effort. He stated that he cannot say if his Password has been misused unless he is shown the hard copy with his signatures as compared to report on EDI system. The respondent had not denied that the entry relating to the impugned Bill of Entry was never made through his system. He had taken the defence that the entry was made through his computer system using his login ID and Password but by someone else who was not authorised to do so.
18. The Disciplinary Authority came to the conclusion that the fact that examination report regarding the impugned Bill of Entry was fed from his account in the computer EDI system was a circumstantial evidence that cannot be denied. Further, the respondent had claimed that his Password could have been misused by someone as there were many people working in his office and the same could have been found out by someone as he used to login and logout of his system many times every day.
19. We deem it appropriate to reproduce the findings of the Disciplinary Authority regarding the claim of the respondent that his password could have been misused by someone:
20. Therefore the Disciplinary Authority and the Appellate Authority did not find any prejudice to have been caused due to the non-supply of the original Bill of Entry. It is well settled law that the technical rules of evidence do not apply to a departmental enquiry and the doctrine of ‘proof beyond reasonable doubt’ has no relevance in a departmental enquiry. All that is needed to establish misconduct is preponderance of probability and some material on record to prove the same. The Hon’ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 while laying down the standard of proof required to prove the guilt of a charged officer in Disciplinary Proceedings held as under:
21. The Hon’ble Supreme Court in Lalit Popli v. Canara Bank, (2003) 3 SCC 583 while laying down the standard of proof in Disciplinary proceedings held as under: “16…In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.”
22. The Hon’ble Supreme Court in K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 while laying down that the scope of principles of natural justice is dependent on the facts and circumstances of each case held that:
25. The respondent was further asked in this examination on 06.01.1999: “Q: -Do you understand that this leakage of password may have serious consequences for the department in generally and you personally in particular. Does it not defeat the whole purpose of the system? Ans:- Yes I admit that it may have serious consequences”
26. If the respondent raised the plea that his Password could have been misused by someone in the office, then it was up to him to prove the same through some positive evidence. If such defence is accepted whenever an officer feeds any false information through his computer system, he can conveniently avoid punitive action by taking the defence that his Password had been hacked by someone.
27. In disciplinary proceedings, a Disciplinary Authority has to see whether after going through the material on record and evidence, a reasonable and prudent man would come to the conclusion that the delinquent officer had indeed committed an act of misconduct. ‘Preponderance of Probability’ is not burdened with the technicalities of the rules of evidence. If after going through the evidence the Disciplinary Authority finds the delinquent officer guilty of misconduct and the delinquent officer is not sufficiently able to rebut this finding, then the order of the Disciplinary Authority would be good in the eyes of law.
28. The Hon’ble Supreme Court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 while laying down the scope of judicial review of departmental enquiries held as under: ‘12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718: AIR 1964 SC 364: (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”
29. In the present case we find that the findings of the Disciplinary Authority were indeed based on evidence and material. No prejudice was shown because of the non-supply of the original Bill of Entry and circumstantial evidence found against the respondent was not rebutted by him. After applying the test of ‘preponderance of probability’ to the present case we find that the Disciplinary Authority was correct in reaching the conclusion that the respondent was guilty of misconduct.
30. In light of the above discussion, we allow the writ petition and set aside the order of the Tribunal dated 08.10.2007.
31. No costs.
VINOD GOEL, J. G.S.SISTANI, J. JUNE 28, 2017 //