BHUPENDRA PAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE QUESTION REQUIRING AN ANSWER 1.1 Should the disciplinary proceedings initiated against the petitioner under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules by issuance of Memorandum of Charges dtd. 23/10/2013 (hereafter "the charge-sheet", for short), served on him on October 29, 2013, i.e., immediately preceding his retirement on superannuation on 31/10/2013 as Commissioner of Customs and Central Excise, be interdicted and nullified on the ground of delay as well as subsequent acquittal in judicial proceedings, is the question that we are tasked to decide on this writ petition.

(2.) Reference to the facts and circumstances leading to institution of the writ petition, as a prelude to our decision, may not be inapt.

(3.) The petitioner was a member of the Indian Revenue Service (Customs and Central Excise) having been recruited in 1979. The incidents giving rise to the charge-sheet dtd. 23/10/2013 relate to an incident of 10/07/2000, when the petitioner was working as Additional Commissioner of Customs (Export Promotion) in the Export Promotion Commissionerate, New Customs House, Mumbai. The said incident of 10/07/2000 related to a party, M/s. Pacific International Exporters, which was allegedly allowed to successfully claim excess drawback contrary to law. In 2002, the petitioner was granted promotion on the post of Commissioner of Central Excise and Customs. Acting on an audit report, the AntiCorruption Bureau of the Central Bureau of Investigation, Mumbai, (hereafter 'the ACB/CBI', for short) registered a First Information Report (hereafter "FIR", for short) dtd. December 31, 2004. One Hemant Kothikar, Deputy Commissioner, Customs Frere Basin, Dock, Mumbai, was named as the prime accused in such FIR. Incidentally, the petitioner was not named as an accused therein. However, in course of conducting investigation, certain materials were collected and on the basis thereof, the ACB/CBI submitted an internal report in September, 2007 recommending prosecution against nine persons including the petitioner. In September 2007 itself, the CBI had forwarded all the relevant documents to the Central Board of Excise and Customs (hereafter, "the Board", for short) for issuing a departmental charge-sheet under the relevant service rules as well as charge-sheet under the penal laws. On 23/01/2008, the Board forwarded a note to the Central Vigilance Commission (hereafter "the CVC", for short) along with a report of the ACB/CBI recommending departmental action against the petitioner. The CVC, vide its Office Memorandum dtd. 04/02/2008, advised initiation of major penalty proceedings against the petitioner and other departmental officers as well as their prosecution. Upon receipt of the same from the CVC, the Board requested the Directorate General of Vigilance, Ministry of Finance, New Delhi (hereafter "the DGV", for short), by letter dtd. 12/05/2008, to furnish draft charge-sheet in respect of the petitioner along with certified copies of the relied upon documents. On July 16, 2008, sanction to the ACB/CBI to prosecute the petitioner was granted by the competent authority, resulting in filing of a police report (charge-sheet) under sec. 173(2) of the Code of Criminal Procedure against accused persons including the petitioner for the offences punishable under sec. 120B read with sections 420 and 471 of the Indian Penal Code (hereafter "the IPC", for short) and under sec. 13(2) read with sec. 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter "the PC Act", for short). Charges were framed under sections 120B, 420, 465, 467, 468 and 471 of the IPC together with sec. 13(2) read with sec. 13(1)(d) of the PC Act by the Special (CBI) Court and the petitioner faced trial before it. In due course of time, the petitioner acquired eligibility to be considered for promotion to the post of Chief Commissioner, Customs and Central Excise and was also considered. However, the sealed cover procedure was adopted owing to pendency of judicial proceedings against him. Since the judicial proceedings were pending before the Special (CBI) Court even on the date of his retirement, consequently the petitioner never got to know the fate of the recommendation that was kept in the sealed cover. According to the petitioner, some of his colleagues were promoted while he stood deprived of promotion. Meanwhile, on 19/05/2009, the Board sent a reminder to the DGV for furnishing the draft charge-sheet. This was followed by second and third reminders dtd. 10/09/2009 and 03/05/2010, respectively. By a letter dtd. 19/05/2010, the DGV wrote to the Board that the Commissioner of Customs (General), Mumbai (hereafter, "the CoC (G)", for short) by his letter dtd. 01/01/2009 had forwarded the draft charge-sheet along with authenticated copies of the relied upon documents to the AD-V sec. of the Board. The Board by its letter dtd. 09/09/2010 requested the CoC (G) to furnish another set of the draft charge-sheet and authenticated copies of the relied upon documents. In pursuance thereof, the CoC (G) on 23/09/2009 furnished a copy of the draft charge-sheet. Insofar as authenticated copies of the relied upon documents are concerned, it was advised that the same may be obtained directly from the ACB/CBI; hence, on November 2, 2010, the Board requested the Superintendent of Police, ACB/CBI, Mumbai, (hereafter, "the SP", for short) to furnish certified copies of the relied upon documents. Three reminders, dtd. 09/02/2011, 09/03/2011 and 29/03/2011, were sent. Pursuant thereto, the SP replied that all the relied upon documents together with the report of the ACB/CBI had been supplied to the Chief Vigilance Officer (hereafter, "the CVO", for short) of the Board on 14/09/2007. It is, therefore, clear that at least at this stage, the Board was required to obtain authenticated copies of the relied upon documents from its own CVO. Instead of activating itself to obtain the relied upon documents from the CVO, the Board again wrote to the ACB/CBI on 29/11/2012 and 29/04/2013 with a request to provide copies of the relied upon documents. Ultimately, the ACB/CBI handed over the relied upon documents once again on 09/10/2013. The competent authority, on 18/10/2013, approved issuance of charge-sheet to the petitioner, whereupon the charge-sheet dtd. 23/10/2013 was served on him two days prior to his retirement on superannuation. It contained two articles of charge. Art. of Charge-I alleged that the petitioner had conspired with Mr. Hemant Kothikar, the then Deputy Commission of Customs, Frere Basin, and certain private persons for clearance of a consignment and in the process had overruled discrepancy raised by the incumbent Examiner and incumbent Superintendent regarding quality, quantity and FOB value of the goods; thereby, the petitioner had failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant. In terms of Art. of Charge -II, the petitioner was alleged to have sanctioned the payment of an amount of Rs.5,20,717.00 as duty drawback to M/s. Pacific International towards exports overruling a query for submission of BRC raised by the Appraiser processing the drawback claim, before submission of reply to the query by the Exporter/CHA and thereafter got the manual files destroyed causing wrongful loss of Rs.5,20,717.00 to the Government and corresponding gain to himself. Thus, it was alleged that the petitioner had failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant. On 02/11/2013, the petitioner responded to the charge-sheet. While denying all the charges levelled against him, the petitioner complained that the relied upon documents had not been forwarded to him along with the charge-sheet and a request was made to supply the said relied upon documents. Such request was accepted on 11/12/2013 and the relied upon documents were received by the petitioner. Thereupon, the petitioner submitted his final reply to the chargesheet on 30/12/2013. There, he raised objection to delayed initiation of disciplinary proceedings. It took the respondents almost a year to appoint an Inquiry Officer as well as a Presenting Officer, who were appointed on 18/12/2014. In February 2015, the petitioner approached the Central Administrative Tribunal, Mumbai Bench, Mumbai, (hereafter "the Tribunal", for short) by presenting an original application bearing O.A. No.99 of 2015. Therein the charge-sheet dtd. 23/10/2013 issued to him was challenged. By an interim order dtd. 05/05/2015, the Tribunal granted stay of further proceedings of inquiry till the disposal of the original application. The respondents in the original application did not prefer to challenge the order dtd. 05/05/2015; instead, they elected to contest the original application by filing an affidavit-in-reply and surrejoinder. During the pendency of the original application before the Tribunal, the Special (CBI) Court delivered its judgment on 04/01/2018 acquitting all the accused persons of the offences with which they had been charged. Although the Special (CBI) Court recorded that the guilt of the accused persons including the petitioner was not proved beyond reasonable doubt, the discussion with regard to the petitioner 's involvement, who was accused no.3 before the said court, can be profitably referred to for tracing the reasons for his acquittal. For facility of convenience, it is reproduced below: -