CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No. 628/2009 New Delhi, this the 16th day of February, 2010 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) H.P. Singh Superintendent Customs, Preventive Commissionerate, New Customs House, New Delhi. Applicant By Advocate: Shri Ajay Veer Singh Jain and Shri Nitin Jain. Versus 1. Union of India Through its Secretary (Revenue) Department of Revenue, Ministry of Finance, Delhi. 2. Commissioner, Central Excise Delhi-1, Central Revenue Building, I.P. Estate, New Delhi. 3. Commissioner for Departmental Inquiries And Inquiry Officer, Central Vigilance Commission, Satarkata Bhawan, Block A, I.N.A., New Delhi-110 023. .Respondents By Advocate: Shri Ashwani Bhardwaj. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 18.2.2009 wherein respondents have explained the delay in issuance of charge sheet dated 18.2.2009 (page 25). He has also challenged the charge sheet dated 30.7.2007 on the ground of inordinate and unexplained delay. It is stated by the applicant that a show cause notice was issued to as many as 45 persons under Section 124 of the Customs Act, 1962 on 24.8.2001 with regard to smuggling of Chinese silk but applicants name did not figure in the said list of 45 persons. It was only on 20.7.2007 that a vague charge-sheet was issued to the applicant (page 16). Applicant gave a representation but applicants representation was not even considered by the respondents, therefore, he challenged the charge-sheet by filing OA No. 1473/2008. The said OA was disposed of on 23.12.2008 (page 239 at 249) with a direction to the respondents to consider the contention of the applicant with regard to inordinate and unexplained delay and pass reasoned order within 2 weeks. The respondents have in the impugned order stated that there is no delay because investigation report was submitted by the CBI on 27.4.2004 who recommended prosecution against number of officers. Similarly Directorate General of Revenue Intelligence have separately submitted their investigation report. Based on these two reports, the Directorate General of Vigilance, Customs and Central Excise, New Delhi, in consultation with CVC had recommended departmental proceedings against number of officers including the applicant.
2. It is submitted by the learned counsel for the applicant that all these facts were known to the respondents as back as in 2001 when they had issued show cause notice to other officers under Section 124 of the Customs Act, 1962 and no new material had come to the notice of the respondents, therefore, the delay has not been explained properly by the respondents. The charge-sheet is, therefore, liable to be quashed on the ground of inordinate and unexplained delay itself. Even otherwise the charge is absolutely vague and there is no iota of evidence against the applicant inasmuch as the star witness of respondents, namely, Shri R.N. Zutshi in his statement had not even taken the name of applicant though he had taken names of other officers who were involved in helping the smuggling of Chinese silk without checking the same properly. He also submitted that applicant is due to retire in 2010, therefore, this charge sheet has definitely caused prejudice to the applicant.
3. Respondents on the other hand have opposed this OA. They have stated correctness of the charges cannot be looked into by the Tribunal as it is beyond the scope of judicial review. The delay in serving the charge-sheet has occurred because investigation took considerable time at various stages, due to which culprits could not be identified at the earliest as the investigation was first conducted by the DRI and then by CBI. Moreover, charge sheet in each case cannot be quashed on the ground of delay unless prejudice is shown before the Inquiry Officer. In the present case there are serious charges against the applicant and while considering the request for quashing the charge sheet, court has to consider the nature of charge, its complexity and the ground of delay. So unless long delay is explained charge-sheet cannot be quashed. Delay has not been fatal in this case and in any case enquiry would only help the applicant to defend himself by producing the evidence and witnesses in his favour.
4. Moreover, in the Ist OA applicants other contentions were not accepted. Court had only directed the respondents to consider the aspect of inordinate delay, therefore, this Tribunal now only has to see whether the delay has been properly explained by the respondents or not. They have also stated that similar other OAs bearing No. 340/2008 Dal Singh Vs. U.O.I. and Others, 1916/2007 Shyopat Singh Vs. U.O.I. and Others and 732/2006 Rajeev Gupta Vs. U.O.I. & Others have been dismissed by this Tribunal, therefore, the OA may be dismissed.
5. We have heard both the counsel and perused the pleadings. Applicant had earlier filed OA No.1473/2008 for challenging the charge sheet dated 30.7.2007 which was decided on 23.12.2008. It is relevant to note that this Tribunal had disposed off the OA with the following observations:-
from the perusal of the charge-sheet we cannot hold that the case is of no misconduct or the charge-sheet is contrary to law.
16. In the result, for the foregoing reasons, this OA stands disposed of with an observation that in the event the applicant prefers a representation to the respondents regarding inordinate and unexplained delay in proceeding him in disciplinary proceedings within one week from the date of receipt of a copy of this order, the same shall be considered and a reasoned order shall be passed by the competent departmental authority within two weeks from the date of receipt of such representation. Till then the enquiry shall be kept in abeyance. No costs.
6. In view of above the contention of the counsel that charge-sheet is vague or no misconduct is made out against the applicant cannot be looked into now because there is already a finding returned by the bench in the Ist OA which reads as under:-
from the perusal of the charge-sheet we cannot hold that the case is of no misconduct or the charge-sheet is contrary to law.
In view of order quoted above, we have only to see whether respondents have explained the delay or not and whether charge-sheet can be quashed on the ground of inordinate delay.
7. In above backdrop, let us examine the contention of the learned counsel for the applicant. It is submitted by the learned counsel that the scam was already known to the respondents in 2001 itself when show cause notice was issued to as many as 45 persons under Section 124 of the Customs Act, 1962. No new material has come on record after 2001 which can justify the delay. However, perusal of the reply and record show that after show cause notice was issued to others in 2001, the matter was investigated by the CBI who gave their report only on 27.4.2004 whereby they recommended that action should be taken against other officers also. Applicants name figured in this report as he was stated to be functioning as Superintendent (P) on 12.6.2000, 4.7.2000 and 10.7.2000, when accused Olga Kozireva and Nazira Ibragimova arrived at IGI Airport. CBI, after examining the facts, has commented that on 12.6.2000, accused Olga was adjudicated only for 4400 mts whereas she actually brought 35420 mts. Of Chinese silk, which led to a wrongful loss to the public exchequer of Rs. 12,83,437/-. It is further revealed that on 4.7.2000 and 10.7.2000 also, the same accused brought Chinese Silk 820 Kg. and 1220 Kg. respectively. She was allowed to go through the green Channel without paying any duty whatsoever. This led to a wrongful loss of Rs.1495879/- to the public exchequer.
8. From above, it is clear that applicants involvement in smuggling of silk scam came to the notice of respondent for the Ist time in end of April, 2004. Respondents have explained that after the report of CBI was received, the matter was placed before the Directorate General of Vigilance, Customs and Central Excise, who in consultation with CVC recommended that disciplinary proceedings should be initiated against the officers mentioned in the CBI report. Thereafter Commissioner of Central Excise, who is the disciplinary authority of applicant co-ordinated the matter with customs authorities as the case was initially booked by the customs authority. Moreover, DGRI and CBI had to be consulted before preparation of draft charge-sheet as investigations were carried out by them. The documents had also to be procured from Commissionerate of Customs (I&G), New Delhi. All this took time.
9. From above narration, it is clear that the case was initially booked by Customs Department in 2001 whereas applicant was in the Central Excise. His name came in the picture only on 27.4.2004 when CBI gave its report. Thereafter various agencies had to be consulted and documents were required to be collected. Naturally, all this would have taken some time. The charge sheet was issued to the applicant on 30.7.2007, therefore, even though there may be slight delay in issuing the charge sheet but it cannot be termed as inordinate. Since delay has been explained, it cannot even be termed as unexplained delay. The law is well settled that so long delay is explained, charge-sheet cannot be quashed.
10. On the question of inordinate and unexplained delay Honble Supreme Court has held as under in State of Andhra Pradesh Vs. N. Radhakishan reported in JT 1998 (3) SC 123:-
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
11. Perusal of the above judgment shows that court has to examine the facts of each case and see whether delay has been explained and whether any prejudice is caused to the employee. It is also required to see how much disciplinary authority is serious in pursuing the charges against the employee. Moreover, nature of charge, complexity and the reason of delay has also to be examined.
12. In Government of Andhra Pradesh and Others Vs. V. Appalaswamy reported in 2007 (14) SCC 49 the question before Honble Supreme Court was whether High Court was justified in quashing the disciplinary proceedings and issuing a direction to the applicant to pay all pensionary benefits only on the ground of delay in concluding the enquiry. It was held by Honble Supreme Court as follows:-
So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, no hard-and-fast rule can be laid down. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer. The High Court did not consider any of the aforementioned aspects. Therefore, the impugned judgment of the High Court was not sustainable.
Even otherwise Honble Supreme Court has repeatedly held that courts should interfere at the stage of charge-sheet as charge-sheet does not give any cause of action to the applicant to approach the court. In the case of Dy. Inspector General of Police Vs. K.S. Swaminathan reported in 1996 (11) SCC 498 wherein it was held as under:-
It is settled law by a catena of decisions of this court that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the tribunal or the court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge-sheet supplied are required to be looked into by the court or the tribunal as to the nature of the charges, i.e., whether the statement of facts and material in support thereof supplied to the delinquent officer would disclose the alleged misconduct. The tribunal, therefore, was totally unjustified in going into the charges at that stage. It is not the case that the charge memo and the statement of facts do not disclose any misconduct alleged against the delinquent officer. Therefore, the tribunal was totally wrong in quashing the charge memo.
Similarly in State of Punjab and Others Vs. Ajit Singh reported in 1997 (11) SCC 368 it was held as under:-
the High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever.
In Secretary to Government, Prohibition & Excise Department Vs. L. Srinivasan reported in 1996 (3) SCC 157 it was held as under:-
In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. In quashing the suspension and the charges on the ground of delay in initiation of the disciplinary proceedings, the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal has exercised power as if he were an appellate forum dehors the limitations of judicial review. He has exceeded his power of judicial review in quashing the suspension order and charges even at the threshold.
In Union of India vs. Kunisetty Satyanarayana (supra), the Honble Supreme Court held that a mere charge sheet or show cause notice does not give rise to any cause of action, because it does not affect the rights of any party. Paras 12 and 13 of the said judgment read as follows:-
12. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show cause notice vide Executive Engineers, Bihar State Housing Board v. Ramdesh Kumar Singh and others, JT 1995 (8) SC 331m Special Director and another v. Mohd. Ghulam Ghouse and another, 2004 (1) SCT 671 (SC); AIR 2004 SC 1467, Ulagappa and others v. Divisional Commissioner, Mysore and others, 2001 (10) SCC 639m State of U.P. v. Brahm Datt Sharma and another, AIR 1987 SC 943 etc.
13. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. (emphasis supplied) In Union of India vs. Upendra Singh (supra), the Honble apex Court observed that the court cannot take over the functions of the disciplinary authority In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with the imputation or particulars of the charges, if any) the misconduct or the irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the Court/Tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court (emphasis supplied) In State of Punjab & Ors vs. Ajit Singh (supra), the apex Court had allowed an appeal against a judgment of the High Court setting aside the charge-sheet served on the respondent in disciplinary proceedings. Para 3 of said judgment reads as under:
3. We do not find any ground to interfere with the judgment of the High Court insofar as the quashing of the order of suspension is concerned. We are, however, of the view that the High court was in error in setting aside the charge-sheet that was served on the respondent in the disciplinary proceedings. In doing so the High court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High court. The allegations are based on documents which would have been produced as evidence to prove the charges in the disciplinary proceedings. Till such evidence was produced it could not be said that the charges contained in the charge-sheet were without any basis whatsoever. Similarly in A. Radha Krishna Moorthys case (supra), the basic principle that in judicial review the courts only examine procedural correctness or otherwise of the decision making process was reiterated.
7. So far as the truth and correctness of the charges is concerned, it was not a matter for the tribunal to go into more particularly at a stage prior to the conclusion of the disciplinary enquiry. As pointed out by this court repeatedly, even when the matter comes to the tribunal after the imposition of punishment, it has no jurisdiction to go into truth of the allegations/charges except in a case where they are based on no evidence, i.e., where they are perverse. The jurisdiction of the tribunal is akin to that of the High court under Article 226 of the Constitution. It is power of judicial review. It only examines the procedural correctness of the decision making process. For this reason the order of the tribunal insofar as it goes into or discusses the truth and correctness of the charges, is unsustainable in law. Delving into the correctness or otherwise of the impugned charge-sheet is, therefore, not our concern. To do so would, in fact, be a transgression beyond the legitimate purview of judicial review.
13. It is thus clear that judicial intervention at the stage of charge sheet is unwarranted.
14. Perusal of above judgments would show that mere delay cannot be a ground to quash the charge-sheet. In the instant case admittedly charge-sheet was issued on 30.7.2007 which was challenged by the applicant by filing OA No. 1473/2008. While disposing of the OA this Tribunal had directed to keep the enquiry in abeyance till his representation is decided. The representation was decided on 18.2.2009 which was again challenged by the applicant by filing the present OA. Once again on the request of the applicant this Tribunal had restrained the respondents from proceeding further in the enquiry vide order dated 23.3.2009 which is continuing till date, therefore, it cannot be stated that respondents have condoned the lapses on the part of the employee.
15. As far as prejudice is concerned, in Appalaswamys case (Supra), Honble Supreme Court has clearly held that it should be demonstrated before the Inquiry Officer. Even otherwise the only contention raised before us by the learned counsel for the applicant was that applicant is due to retire in 2010. Applicant is himself responsible for the delay after issuance of charge-sheet because he had taken stay otherwise the enquiry could have been completed, therefore, this contention has no merit. We however feel that since applicant is due to retire in 2010, this enquiry should be completed expeditiously subject to applicants co-operation.
16. OA stands disposed of with the above direction. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER) MEMBER (A) MEMBER (J) Rakesh