Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 371 (ORI)

Union of India v. Amiya Kanti Pattnaik

2010-05-19

I.MAHANTY, L.MOHAPATRA

body2010
JUDGMENT I. MAHANTY, J. : This writ petition under Article 226 and 227 of the Constitution has been filed by the Union of India represented through Secretary, Ministry of Finance, seeking to challenge the order dated 30.7.2004, passed by the learned Cen¬tral Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.675 of 2002, whereby, the application of the applicant-opposite party, Amiyakanti Patnaik was allowed and the discipli¬nary proceeding initiated against the applicant-opposite party was quashed and as a consequence of which, the impugned order punishment as well as confirmation of the said order by the appellate authority as well, were quashed. 2. From the records of the proceeding, it appears that the applicant-opposite party, Sri Amiya Kanti Patnaik challenged the order of punishment passed by the Commissioner of Central Excise and Customs, Bhubaneswar-II before the Central Administrative Tribunal, Cuttack Bench, Cuttack (in short ‘the Tribunal’). (1) The facts of the case available from the record show that the applicant-opposite party while working as Inspector of Central Excise & Customs, Central Preventive Unit, during 1989-90, a search was conducted by a team of officers of the Central Preventive Unit in the site office of M/s. Precision Engineering Works on 28.12.1989. The said search team was headed by one Sri J.S. Mantry, Superintendent (Prev.) under the overall supervision of Sri F. Lakra, Assistant Collector (Prev.). (2) The allegation against the applicant-opposite party No.1 was that, though he had acted as “seizing officer” and had seized 40 numbers of documents, which were stated to have been found in course of such “search and seizure”, it revealed that there was evasion of excise duty to the tune of Rs.1.5 crores approximate¬ly. It is alleged that though a “Panchnama”, containing a list of 40 documents was duly prepared and signed by the applicant-opposite party No.1 and the representative of the firm and wit¬nesses, the applicant-opposite party did not take necessary follow up action that was required from him i.e. after scrutiny of the documents, the same were to be submitted before the higher authorities within 24 hours of the search, which he did not do. It is further alleged that the applicant- opposite party did not enter the offence in the 335J Register and failed to process the same for adjudication of the proceeding. It is further alleged that the applicant- opposite party did not enter the offence in the 335J Register and failed to process the same for adjudication of the proceeding. On 19.02.1990 when the applicant-opposite party was transferred on promotion to the rank of Superintendent, he did not account for those seized documents nor did he hand over the same to his successor. It is further alleged that those seized documents were no more traceable. 3. From the records of the proceeding, it appears that the applicant-opposite party raised the following contentions before the Central Administrative Tribunal. (1) That he was not supplied with the basic documents and even the documents listed in the charge sheet and relied upon by the Department were not provided to him. (2) There was delay in framing charges as well as in the disciplinary proceeding. (3) The entire allegation against the applicant-opposite party were based on photo-copy of the documents which was pub¬lished in an Oriya Newspaper dated 19.9.1992, with a fake signa¬ture of the applicant. (4) None of the officers involved at the time of alleged default neither appeared nor were examined in course of the disciplinary proceedings. The C.B.I. had carried out an investi¬gation into self-same allegation against the applicant-opposite party, and conclusion of investigation while no criminal case was initiated against the applicant-opposite party, the Investigating Officer had suggested to initiate a departmental proceeding, on the basis of which the opposite party was duly charged. (5) In spite of repeated requests relevant Panchnama and other relevant documents which are relied upon by the Department in the article of charges were never supplied to the applicant. (6) Although on 20.05.1998 the Enquiry Officer has directed the Department to provide the applicant with the listed docu¬ments, yet the Enquiry Officer reversed his decision on 25.01.1999 without any valid ground. The documents involved were Panchanama, Search Warrant, Search Warrant Register etc. none of which was ever produced by the Department in course of the proceeding and copies of the same were never provided to the applicant. 4. The documents involved were Panchanama, Search Warrant, Search Warrant Register etc. none of which was ever produced by the Department in course of the proceeding and copies of the same were never provided to the applicant. 4. In the light of the aforesaid contentions raised by the applicant opposite party, the Tribunal came to find that although it is alleged that the opposite party was a member of the “raid¬ing team”, no evidence could be produced in course of departmen¬tal proceeding, and instead it was proved that, the applicant-opposite party had not been directed to act as an “Seizing Offi¬cer”. The tribunal also came to find that none of the relevant documents, namely, Panchanama, Search Warrant and Search Warrant Register, which are vital records to bring home the charges against the applicant-opposite party, was ever produced in course of departmental proceeding, even though the said documents had been listed as Exhibits on behalf of the Department in order to substantiate its charge. The Tribunal, after going through the submissions made by the parties came to hold that though the Enquiry Officer, took note of the fact that, in the articles of imputations of miscon¬duct against the applicant it was stated that because of the acts of omissions and commissions on the part of the applicant there was duty evasion to the tune of Rs.1.5 crores, yet the Enquiry Officer in his report has not dealt with this part of the charge. The statutory appellate authority while examining the matter came to observe as follows :- “The Commissioner was observed that there is no evidence on record to show that M/s. Precision Engineering Works had actually evaded payment of excise duty during the relevant period of time and if so what was the extent of excise duty involved”. Therefore with this finding, the appellate authority has held that the allegation of loss of revenue, not longer survives. In so far as “non-submission of documents”, listed as exhib¬its are concerned, it appears that the Department took a stand that the same are confidential in nature. Therefore with this finding, the appellate authority has held that the allegation of loss of revenue, not longer survives. In so far as “non-submission of documents”, listed as exhib¬its are concerned, it appears that the Department took a stand that the same are confidential in nature. While the Department admitted that the documents sought for by the applicant were not produced on the ground of confidentiality, but the said stand of the Department was turned down by the Tribunal on the following finding :- “In the absence of those documents, out of which the article of charge emanates cannot be proved unless those are produced during inquiry and the charged officer (CO) is allowed the bene¬fit of cross examination of witnesses”. In such circumstances, it was held by the Tribunal that the Department could have hardly proved the allegation against the delinquent, without exhibiting such document and providing the copy of the same to the delinquent as well as granting opportuni¬ty to the delinquent to cross-examine the witnesses to whom such document could have been exhibited. 5. Reliance was placed by the Tribunal on the judgment of the Supreme Court in case of State of U.P. v. Satrughana Lal reported in AIR 1998 SC 3038 in which it was held that if the copies of the documents relied upon in the charge sheets are not supplied, the principles of natural justice are violated and therefore, the Court/Tribunal would be justified in interfering with the matter. Reliance was also placed on a decision of the Supreme Court in the case of M.P. Chinetonium Sadasiva Weishampayum reported in AIR 1961 SC 1623 . In the aforesaid judgment, the Hon’ble Supreme Court came to hold that if copies of the document to which a public servant is entitled are not supplied, inquiry cannot be held to have been carried out in accordance with the principles of natural justice and therefore, there should be no doubt that the provisions of Article 311(2) have been violated both in letter and spirit. In case the Enquiry Officer failed to ensure that the docu¬ments referred to herein above by the Department, based on allegation against the appellant could be proved, the finding of the Tribunal was that the applicant was denied the most valuable right under the Constitution to defend his case effectively and therefore, by with-holding the most vital documents in this case, the departmental proceeding could not be conducted in a bona fide manner. 6. The Tribunal discussed the issue regarding “delay in initiating the departmental proceeding” as well as delay in concluding the same and placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of M.P. v. Bani Singh reported in AIR 1990 SC 1308 . 7. With regard to the report of the Enquiry Officer, the Tribunal came to the conclusion that, the same was based on subjective observation and the report also lacks in analysis and suffers from having lost sight of the objectivity. Apart from the above, the Tribunal came to hold that the conclusion of the disciplinary authority,as well as the appellate authority that the applicant-opposite party had seized documents and had further not handed over those documents to the person from whom they were seized before he moved out of the unit on promotion on 19.2.1990 was not based on any documentary evidence. Whether the endorsement on the documents was proved or not and the applicant was designated as the Seizing Officer or not and whether the applicant had seized certain documents or not were important questions, but the same have not been answered either by producing the relevant document or with the help of the witnesses by the appellate authority. One of the members, namely, Sri D.K. Satpathy deposed before the Enquiry Officer that the applicant-opposite party was not the seizing officer and he had no role to play in the matter of seizing of documents. Further, P.W.8 had deposed that when the representatives of M/s. Precision Engineering Works demanded to see the search warrant, they were told that the search warrant would be shown to them if they (Company) did not produce the documents for inspection and since all the documents were pro¬duced by the Company, there was no occasion to serve any search warrant. Further, P.W.8 had deposed that when the representatives of M/s. Precision Engineering Works demanded to see the search warrant, they were told that the search warrant would be shown to them if they (Company) did not produce the documents for inspection and since all the documents were pro¬duced by the Company, there was no occasion to serve any search warrant. P.W.12 has also stated that in course of the enquiry no documents/register bearing signature of the applicant was ever seen by him as Superintendent (Anti-Smuggling). Relying on these evidence the Tribunal came to a conclusion that no search warrant was ever issued in the first instance and further, if such docu¬ments were not in possession of the Assistant Commissioner/Super¬intendent C.P.U., they could not have carried out further follow up action in respect of M/s. Precision Works. The Tribunal also came to a finding that the Enquiry Officer and the disciplinary authority failed to clarify as to why the Department could not produce the original or the copy of Annex¬ure-1, is an issue which had been repeatedly pointed out by the applicant which was indicative of the fact that the prosecution was not playing a fair and transparent game. Accordingly, the Tribunal concluded that it was unable to hold that, during inquiry it could be proved that the charged officer was responsible for seizing documents and/or in not taking further follow up action. Accordingly, the Tribunal held that the unwillingness of the Department to produce vital documents, i.e., search warrant, search warrant register and Panchanama etc. as well as the connected files in original, has caused gross violation of the principles of natural justice to the prejudice of the applicant. The delay in initiating disciplinary proceeding as against the applicant-opposite party has not been explained before the Tribunal to come to a conclusion that the delay on the part of the Department in initiating the disciplinary proceeding was reasonable. 8. In the light of the aforesaid facts, Mr. J.K. Mishra, learned Asst.Solicitor General of India raised the following contentions. (a) There is no time limit under the CCS (CCA) Rules for comple¬tion of disciplinary proceeding. 8. In the light of the aforesaid facts, Mr. J.K. Mishra, learned Asst.Solicitor General of India raised the following contentions. (a) There is no time limit under the CCS (CCA) Rules for comple¬tion of disciplinary proceeding. Various facts have been noted in the counter filed by the opposite parties indicating the steps taken prior to initiation of the disciplinary proceeding a well as in course of disciplinary proceeding in order to justify the alleged delay by the Department for initiating the disciplinary proceeding and the guidelines for conducting the disciplinary proceeding in question. (b) It is stated on behalf of the Union of India that the al¬leged non-supply of essential documents to the Charged Officer by which the right to defend his case was seriously prejudiced is based by ignoring the fact that the Charged Officer was himself the seizing officer and he has not submitted the relevant docu¬ments regarding seizure before the appropriate authority. (c) The initiation of the disciplinary proceeding against the applicant-opposite party was based on the advice of the Central Vigilance Commission, who charged opposite party No.1 to be responsible for the loss of Government revenue of Rs.1.5 crores. In this regard, it is submitted that opposite party had improper¬ly exercised his position. This fact has also been corroborated by other witnesses. 9. Mr. Aswini Mishra, learned Senior Counsel appearing for opposite party on the other hand, contended that the entire exercise of authority by the Department in directing continuance of the disciplinary proceeding has resulted in levy of punishment as well as dismissal of the opposite party’s appeal is wholly illegal and he supported his contention by relying various find¬ing noted by the Central Administrative Tribunal in the order impugned in the present case. 10. In the light of the facts and circumstances as noted herein above and taking into consideration the contention raised on behalf of the Union of India, it is necessary to take note of details of events that took place prior to initiation of the disciplinary proceeding and in course of such disciplinary pro¬ceeding. 10. In the light of the facts and circumstances as noted herein above and taking into consideration the contention raised on behalf of the Union of India, it is necessary to take note of details of events that took place prior to initiation of the disciplinary proceeding and in course of such disciplinary pro¬ceeding. On perusal of the same, we are of the considered view that the alleged delay both in initiation as well as in the conduct of the disciplinary proceeding have been substantially explained and therefore, the finding of the learned Tribunal that there has been delay in the aforesaid respect cannot be supported and hence such finding stands quashed. Keeping in view the fact that the CCS (CCA) Rules, 1965 do not provide for any limitation for completion of the disciplinary proceeding. 11. In so far as the next contention of Union of India, with regard to non-supply of essential documents to the Charged Officer is concerned, we are of the considered view that such contention of the Union of India has no basis whatsoever, espe¬cially since, on perusal of Annexure-2 i.e. memorandum of charges against the opposite party and in particular (Annexure-4 thereof), the Department has sought to rely upon the specific documents noted therein especially the documents No.10 and 12, without furnishing copies thereof to the Charged Officer. In order to reach a finding against the delinquent, the Department has to establish its case with cogent materials and in accordance with law. The Department relied upon the said documents, in the imputation and article of charges framed against the opposite party and was required in law to produce such documents and provide the copies of the same to the opposite party. In the absence of such compliance, no reliance could be placed upon the same. In the case at hand, as would be evident from the order of the Tribunal, at no point of time has such documents ever been brought on record, in support of such allegation. The aforesaid contention on behalf of the Union of India has no basis whatsoev¬er and therefore we have no hesitation to reject the same. 12. In so far as the 3rd contention of the Asst. The aforesaid contention on behalf of the Union of India has no basis whatsoev¬er and therefore we have no hesitation to reject the same. 12. In so far as the 3rd contention of the Asst. Solicitor General is concerned i.e., the alleged loss of Government revenue to the tune of Rs.1.5 crores has been specifically turned down by the appellate authority itself which came to hold the said allegation not to be substantiated. On perusal of the record, it appears that the C.B.I., who conducted the enquiry into the allegation against the opposite party and others came to the conclusion as follows :- “The evasion of Central Excise duty of M/s. PEW could not be substantiated. The other corroborative document could not be proved about the allegation of evasion of Central Excise Duty against M/s. P.E.W.”. From Annexure-7 to the writ petition, the approval of C.V.C. dated 07.06.2002 to initiated the action against opposite party in Paragraph-11 thereof is quoted hereunder. “The Commission observes that there is no evidence on record to show that the document seized from M/s. PEW on 28.12.1989 were subsequently scrutinized or analyzed in detail at any stage work out the extent of duty evasion by M/s. PEW. The statements and depositions of the Witnesses also do not indicate anywhere the basis of computing/arriving at the alleged excise duty evasion of above Rs.1.5 crore by M/S. PEW. The records of the case also do not contain any material or corroborative evidence to indicate whether M/s. PEW had actually evaded payment of excise duty during the relevant period of time and if so the extent of the excise duty involved. Therefore, the Commission hold in second component of charge that the documents seized by CO apparently revealed excise duty evasion of about Rs.1.50 crore by M/s. PEW has not been established”. In view of such finding of C.B.I. as well as the C.V.C. and the Central Administrative Tribunal, we have no hesitation to reject the 3rd contention raised by the Union of India, that the opposite party had in any manner caused any loss of Government revenue to the tune of Rs.1.5 crores as alleged. 13. In view of such finding of C.B.I. as well as the C.V.C. and the Central Administrative Tribunal, we have no hesitation to reject the 3rd contention raised by the Union of India, that the opposite party had in any manner caused any loss of Government revenue to the tune of Rs.1.5 crores as alleged. 13. Therefore, in view of our conclusions, noted herein above, even though, we have agreed with the 1st contention raised by the Union of India and to such an extent, quash the finding of the learned Tribunal impugned before us, and further hold that alleged delay on the part of the Department in initiating the disciplinary proceeding, has been substantially explained, yet, since but we reject the 2nd and 3rd contentions raised by the Union of India, we have no hesitation in affirming the judgment of the Tribunal and note our concurrence on all other findings of the Tribunal, except, to the extent as noted herein above. In conclusion, we, therefore, held that the conclusion reached by the learned Tribunal is wholly in accordance with law and fact considered herein and therefore, the writ petition merits no further consideration whatsoever and dismiss the same. According¬ly, the petitioners are directed to carry out the directions issued by the learned Tribunal and implement the same within a period of six weeks from the date of receipt of this judgment. Interim order passed on 12.04.2005 in Misc. Case No.1320 of 2004 stands vacated. L. MOHAPATRA, J. I agree. Petition dismissed.