S.Y. JHA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicant, a Superintendent in the department of Central Excise and Customs, is aggrieved by the order dated 31.3.2010 of the Commissioner of Central Excise and Customs & Service Tax, Daman in his capacity as the Disciplinary Authority and the order dated 6.9.2011 of the Appellate Authority, both awarding the penalty of applicant a reduction to a lower stage in the current -time scale of pay by two stages from Rs. 19,500/ - (Basic Pay) + Rs. 5,400/ - (Grade pay) to Rs. 18,060 + Rs. 4.800/ - in the time scale of pay of Rs. 9,300/ - - 34,800/ - + Rs. 4,800/ - (Grade pay) for a period of four years, with effect from 01.04.2010 with further instructions that he will not earn the annual increments of his pay during the said period of reduction and that on the expiry of this period, the said reduction will not have the effect of postponing his future increments of pay. The applicant's case is that while he was working as Superintendent, Customs at Valsad, a charge sheet dated 8.11.2006 was issued to him, imputing that while he was working as Superintendent of Central Excise and Customs, Range: Sarigam, Vapi Division, he along with two Inspectors, in conspiracy with the exporters had illegally allowed clearance of mis -declared goods for export from the manufacturers' premises under his supervision and seal and that he had submitted a false Examination Report in support of the mis -declaration. Annexure A -2 is the copy of the charge sheet. After a departmental Inquiry, Annexure A -4 Inquiry Report was submitted by the Inquiry Officer on 5.11.2007. During the Inquiry the applicant had filed a detailed statement of his defence. The Inquiry Officer found that the charge of conspiracy leveled against the applicant was not proved; but, the charge pertaining to lack of devotion to duty and conduct unbecoming of an officer of Government was proved. The applicant thereafter filed Annexure A -5 detailed representation on the Inquiry Officer's report. Thereafter, the Disciplinary Authority passed the Annexure A -1 order dated 31.3.2010 imposing the aforesaid penalty. Thereafter, the applicant filed Annexure A -6 memo of appeal before the President of India. The Appellate Authority vide its order dated 6.9.2011 (of Annexure A -1 Colly) rejected the appeal confirming the Annexure A -1 order dated 31.3.2010 of the Disciplinary Authority.

(2.) BY way of the grounds of this OA, the applicant submits that charge apparently is vague in as much it is based on the presumption that the alleged conspiracy "could have led to illegal pecuniary benefits to the suspect Export Firm and corresponding loss to the Government Exchequer". The allegation is based on conjectures and surmises. The applicant was placed under suspension and during that period he made an extensive representation dated 4.8.2004 vide Annexure A -7 pointing out that due to the workload on re -organisation and merging of the Range it was almost impossible for the Inspectors and one Superintendent to manage inspection of various Units and also the administrative responsibilities. Inquiry Officer failed to appreciate the fact that the presence of the applicant was essential when such an evidence was taken into account. Having held that the charge as not proved, it was not open for the Inquiry Officer to hold that the charge of dereliction of duty as proved when the entire charge was part of one transaction and he should have exonerated the applicant completely, There was gross violation of principles of natural justice in as much as the panchas were not produced for examination and cross examination. Therefore, their panchnama could not have been relied upon in absence of their authentication. Therefore, the Inquiry suffers from the vice of violation of principles of natural justice and hence the findings of the Inquiry Officer are perverse and the consequential order of penalty is also bad. There was no evidence on record to show at what stage the bricks were replaced and therefore, merely to hold the applicant guilty of dereliction of duty and shift the burden of disproving such a charge on the applicant in absence of clear evidence as to at what stage the bricks were replaced is a conclusion arrived at by the Inquiry Officer in absolute disregard to the principle of preponderance of probabilities, and the findings of the Inquiry Officer are perverse to that extent. The applicant had in detail explained the modus operandi being frequently adopted by the exporters by breaking open hinges of the containers and replacing the goods enroute to the Port of shipment. It is a common practice in South Gujarat to replace the goods enroute without tampering the seal and dozens of such cases have been unearthed by various agencies. Such replacements took place between Charoti and Manor at N.H. 8. In view of the categorical admission of Preventive Officers that they did not check the hinges, it is apparent from the findings of the Inquiry Officer's report, that the charge sheet was issued on mere suspicion and that 'suspicion' had been taken to be the 'preponderance of probability'. Even the Inquiry Officer has accepted the contention that was raised in defence to prove that the number of packages in each of the examination/stuffing report did not match with any of the customs carton numbers seized by the Customs Department. Even the UPSC, in its advice had accepted this stand, in as much as it was so observed in para 5 of such advice. However, discarding this fact, the order of penalty has been imposed on the applicant. The applicant had a good service record. His ACRs are also graded as "Excellent". The applicant had not been supplied with a copy of the UPSC Advice dated 9.8.2011. The copy of the UPSC Advice was served only alongwith the order in appeal.

(3.) IN the reply filed by the respondents the contentions are follows: -