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2012 (4) TMI 578 - CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAYCustoms

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Reservation not mandatory for CESTAT technical member selection where rules and government orders excluded roster application.
Reservation was not mandatorily applicable to appointment as Member (Technical) of CESTAT under Section 129(2) of the Customs Act, 1962 and the 1987 Recruitment Rules. Rule 21 preserved only such reservations and concessions as were required by Central Government orders, and the record showed that the Government had excluded Judicial and Technical Members from reservation orders while directing due consideration of eligible SC/ST officers. The post was treated as a selection post, the choice was made by a high-level committee headed by a Supreme Court Judge, and no specific CESTAT rule created a roster-based right to appointment. The challenge to non-selection therefore failed.

Reservation in public employment - applicability of reservation to selection posts/ex-cadre posts - rule of roster of reservation - saving clause preserving reservation orders in service rules - selection by independent expert committee and merit/efficiency consideration - challenge to selection process after participating with notice of non-application of reservationApplicability of reservation to selection posts/ex-cadre posts - saving clause preserving reservation orders in service rules - Whether the rule of reservation is mandatorily applicable to appointments to the post of Member (Technical) in CESTAT. - HELD THAT: - The Tribunal held that reservation cannot be read into the appointment process for Members of CESTAT in the absence of any specific provision in the Customs, Excise and Service Tax Appellate Tribunal (Members Recruitment and Conditions of Service) Rules, 1987 providing for reservation. The Government's administrative order excluding Judicial and Technical Members of the Tribunal from operation of Reservation Orders, together with the absence of a reservation clause in the CESTAT Rules, indicates that the reservation regime was not made applicable to these posts. The Court contrasted the CESTAT rules with those governing I.T.A.T., where reservation is expressly provided, and observed that differences in selection procedures and composition of selection authorities (a Supreme Court Judge chairing the CESTAT Selection Committee) may justify different treatment. Consequently, the constitutional mandate for reservation does not automatically render reservation applicable where the statutory or rule framework for the particular post does not provide for it. [Paras 14, 16, 21, 23, 26]Reservation rules do not mandatorily apply to appointments of Technical Members of CESTAT in the absence of express provision for reservation in the statutory rules and having regard to the Government order excluding such posts from Reservation Orders; the question is answered in the negative.Rule of roster of reservation - selection by independent expert committee and merit/efficiency consideration - challenge to selection process after participating with notice of non-application of reservation - Whether the applicant, being the only Scheduled Caste candidate interviewed, was entitled to be selected for the available vacancy on the basis of reservation or roster considerations notwithstanding the selection committee's merit-based panel and the terms of the notification. - HELD THAT: - The Tribunal found that the Selection Committee prepared a panel (presumably in order of merit) and the government appointed from that panel; one selected candidate declined and the next panel candidate was appointed. There was no allegation of bias or mala fides in the selection. The notification inviting applications did not state that reservation would be applied; the presence of a caste column in the application form was not evidence that reservation was in contemplation. The applicant participated in the selection process with full knowledge that reservation rules were not being applied and cannot challenge the selection process on that ground. Moreover, the applicant did not show that any existing Scheduled Caste member had been appointed pursuant to a roster application that would entitle him to the claimed slot. For these reasons the claim that he should have been selected solely because he was the sole SC candidate was repelled. [Paras 16, 17, 18, 19, 26]The applicant was not entitled to appointment merely because he was the only Scheduled Caste candidate interviewed; the selection process and appointments stood, and the challenge was rejected.Final Conclusion: The Tribunal dismissed the application and answered both questions in the negative: reservation was not mandatorily applicable to appointment of Technical Members of CESTAT in the absence of express rule provision, and the applicant was not entitled to selection simply for being the sole Scheduled Caste candidate; application dismissed, parties to bear their costs.

2011 (5) TMI 919 - Central Administrative Tribunal – DelhiCustoms

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Issues: (i) whether the charge sheet was liable to be quashed for inordinate and unexplained delay in initiating disciplinary proceedings; and (ii) whether reliance on statements recorded in earlier proceedings, without producing the deponents for cross-examination in the disciplinary enquiry, violated the requirement of reasonable opportunity.

Issue (i): whether the charge sheet was liable to be quashed for inordinate and unexplained delay in initiating disciplinary proceedings.

Analysis: The disciplinary allegations related to events of 1998, while the impugned memorandum was issued after a long lapse of time despite earlier investigation, a show cause notice, and an adjudication order that had specifically noticed the applicant's role. The Tribunal applied the settled principle that delay in initiating or continuing disciplinary action must be assessed on the facts, but where the delay is abnormal, unexplained, and causes prejudice, the proceedings may be interdicted. On the facts, no satisfactory explanation for the delay was shown.

Conclusion: The charge sheet was liable to be quashed for inordinate and unexplained delay, in favour of the applicant.

Issue (ii): whether reliance on statements recorded in earlier proceedings, without producing the deponents for cross-examination in the disciplinary enquiry, violated the requirement of reasonable opportunity.

Analysis: The Tribunal held that statements recorded behind the applicant's back in earlier proceedings could not be treated as substantive material in the disciplinary enquiry unless the persons who made those statements were examined in the applicant's presence and were made available for cross-examination. This requirement flowed from the principles of natural justice and the constitutional mandate of reasonable opportunity. Statements under Section 108 of the Customs Act, 1962 could not be used against the applicant in the manner proposed by the respondents.

Conclusion: Such reliance without cross-examination was impermissible and was against the applicant.

Final Conclusion: The impugned disciplinary memorandum was set aside and the original application succeeded on the ground that the proceedings were vitiated by unexplained delay and by denial of a fair opportunity to meet the evidence.

Ratio Decidendi: Unexplained and prejudicial delay in initiating disciplinary proceedings, coupled with reliance on prior statements without affording cross-examination of the makers, violates natural justice and justifies quashing the charge sheet.

Unexplained disciplinary delay and denial of cross-examination can vitiate a charge sheet under natural justice principles.
Unexplained and prejudicial delay in initiating disciplinary proceedings can justify quashing a charge sheet, particularly where the allegations relate to old events and no satisfactory explanation for the delay is offered. The Tribunal also noted that statements recorded in earlier proceedings cannot be relied on as substantive evidence in a disciplinary enquiry unless the makers are examined in the applicant's presence and made available for cross-examination. Applying the principles of natural justice and reasonable opportunity, the disciplinary memorandum was set aside because the proceedings were vitiated by delay and by denial of a fair chance to meet the evidence.

Inordinate and unexplained delay vitiating departmental enquiry - right to cross-examine witnesses / principles of natural justice - inadmissibility of statements recorded behind the back of the charged officer - requirement of examining witnesses whose prior statements are relied uponInordinate and unexplained delay vitiating departmental enquiry - Delay in issuing the memorandum/charge sheet rendered the disciplinary proceedings unsustainable. - HELD THAT: - The Tribunal held that the respondents failed to explain the long gap between the events (investigation in 1998, show cause in December 1999, exoneration with direction for departmental action in 2003) and the initiation of departmental proceedings in 2006/2010. Applying the settled principle that disciplinary proceedings must be initiated and concluded expeditiously, the Tribunal examined precedents stressing that unexplained, abnormal delay causes prejudice, undermines fair trial and may warrant quashing of charges. On the facts the respondents did not offer a satisfactory explanation for the delay or show that the applicant was responsible for it; prejudice to the applicant from the protracted delay was held to be apparent. Consequently the charge sheet was quashed on the ground of inordinate and unexplained delay. [Paras 7, 22]The memorandum/charge sheet was quashed for inordinate and unexplained delay and the OA was allowed.Right to cross-examine witnesses / principles of natural justice - inadmissibility of statements recorded behind the back of the charged officer - requirement of examining witnesses whose prior statements are relied upon - Statements recorded in earlier enquiries in the absence of the applicant could not be relied upon in the departmental enquiry unless the persons who made those statements are produced for cross-examination. - HELD THAT: - The Tribunal applied the settled law that a delinquent employee must be given a reasonable opportunity of hearing, which includes the right to have witnesses examined in his presence and the opportunity to cross-examine witnesses whose earlier statements are sought to be used against him. Statements recorded under the Customs Act in 1999, relied upon as documents in the departmental proceedings, could not be treated as substantive evidence unless the declarants were made available for examination and cross examination; permitting otherwise would contravene the ratio in Kuldeep Singh and other Supreme Court decisions. The Tribunal also observed that the long lapse of time would impair witnesses' ability to recall events and would thus prejudice the applicant's defence. [Paras 19]The departmental enquiry could not lawfully proceed on the basis of prior statements recorded in the absence of the applicant without producing those witnesses for cross examination.Final Conclusion: The OA is allowed: the memorandum/charge sheet dated 18.11.2010 (and the declaration to hold departmental enquiry) is quashed on grounds of inordinate and unexplained delay and because the charges relied largely on earlier statements recorded in the applicant's absence which cannot be used unless the declarants are produced for cross examination; no costs.

2010 (12) TMI 97 - CENTRAL ADMINISTRATIVE TRIBUNALCustoms

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Issues: (i) whether the applicant was deemed to have been confirmed on completion of the initial period of probation because no extension order was issued in time; (ii) whether the discharge from service was punitive and therefore liable to be set aside.

Issue (i): whether the applicant was deemed to have been confirmed on completion of the initial period of probation because no extension order was issued in time.

Analysis: The period of probation under the governing rules was one year, extendable by one year at a time up to an aggregate of three years. The availability of a maximum probation period did not by itself create automatic or deemed confirmation. The rule permitting discharge during probation and the absence of any express confirmation order negatived the plea that continuance in service after the first year resulted in deemed confirmation. Administrative instructions regarding timely consideration of confirmation did not confer an enforceable right contrary to the rules.

Conclusion: The applicant was not deemed confirmed and remained on probation.

Issue (ii): whether the discharge from service was punitive and therefore liable to be set aside.

Analysis: The discharge was founded on overall unsatisfactory performance and unsuitability for the post, including material showing transgression of jurisdiction, but there was no full-scale formal enquiry culminating in a finding of guilt. The material was used to assess suitability during probation and did not convert the order into one of punishment. In the absence of moral turpitude, a stigmatic element, or a disciplinary enquiry of the kind that attracts constitutional protection, the order was treated as termination simpliciter.

Conclusion: The discharge was not punitive and did not violate the requirements of natural justice.

Final Conclusion: The challenge to the probation-related extension and the discharge order failed, and the applicant's service termination was upheld as a valid probationary discharge.

Ratio Decidendi: A probationer is not automatically confirmed merely because the maximum period of probation is provided in the rules and expiry of the initial period does not by itself confer a right to confirmation absent an express confirmation order; a discharge based on unsuitability and unsatisfactory performance during probation is termination simpliciter unless preceded by a formal enquiry into misconduct culminating in a finding of guilt.

Probationary discharge and deemed confirmation depend on express confirmation and absence of punitive misconduct findings.
A probationer is not automatically confirmed merely because the initial probation period expires or the rules allow a maximum probation term; absent an express confirmation order, continued service does not create deemed confirmation. The commentary also explains that discharge based on unsatisfactory performance and overall unsuitability during probation remains termination simpliciter where it is not founded on a formal disciplinary enquiry or a finding of misconduct. On that reasoning, the service termination was upheld as a valid probationary discharge and was not treated as punitive or violative of natural justice.

Probation - extension and deemed confirmation - Probation under Rules 8 and 9 of the Rules of 1987 - Termination simpliciter versus punitive dismissal (stigma test) - Role of increments and administrative instructions in assessing probationProbation - extension and deemed confirmation - Probation under Rules 8 and 9 of the Rules of 1987 - Role of increments and administrative instructions in assessing probation - Deemed confirmation qua probation where extension was not issued immediately after first year - HELD THAT: - The Tribunal held that there could be no deemed or automatic confirmation merely because the period of probation was not extended immediately after one year. The Rules of 1987 permit extension one year at a time up to a maximum of three years and Rule 9 preserves the power to terminate an appointment of a judicial Member appointed from the Bar unless confirmed. The court relied on later Supreme Court precedents (including consideration of Dharam Singh in subsequent authorities) to conclude that continuation beyond a prescribed probationary period does not give rise to deemed confirmation unless the rules or appointment terms so provide and confirmation is in fact ordered. Administrative instructions and the grant of increments do not create a right to confirmation; such instructions are administrative and increments do not ipso facto amount to confirmation. In the applicant's case the maximum three-year period had not elapsed and Rule 9 would render the deemed-confirmation argument inconsistent with the statutory scheme; therefore deemed confirmation was rejected. [Paras 12]Deemed confirmation after one year was not accepted; no automatic or deemed confirmation arose under the Rules of 1987.Termination simpliciter versus punitive dismissal (stigma test) - Probation - extension and deemed confirmation - Whether the discharge order was punitive (stigmatic) or a termination simpliciter for unsuitability during probation - HELD THAT: - Applying the established three-factor and 'stigma' tests, the Tribunal found that the discharge was based on the competent authority's satisfaction about the applicant's overall unsuitability and unsatisfactory performance, and not on findings of moral turpitude or following a full-scale disciplinary enquiry culminating in a guilty finding. The material before the competent authority consisted of the President's note indicating transgression of jurisdiction and other service deficiencies; these constituted material upon which the competent authority could act under the probationary framework. There was no allegation of moral turpitude nor a departmental inquiry that produced a finding of guilt. Accordingly the order was treated as termination simpliciter during probation rather than a punitive, stigmatic dismissal requiring Article 311 protections. [Paras 13]The discharge was termination simpliciter for unsuitability/unsatisfactory performance and not a punitive stigmatic order.Final Conclusion: The OA is dismissed: the applicant was not deemed confirmed after one year under the Rules of 1987, and his discharge was a termination simpliciter for unsuitability during probation and not a punitive, stigmatic dismissal.

2003 (7) TMI 681 - UNITED KINGDOM VAT & DUTIES TRIBUNALSCustoms

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Tribunal upholds VAT re-registration due to under-declarations of takings, despite doubts. Independent report deemed unconvincing.
The Tribunal dismissed the appeal, upholding HMCE's decision to re-register the Appellant for VAT due to significant under-declarations of takings. Despite some doubts about HMCE's methods, the evidence supported the re-registration, as discrepancies in sales records indicated suppressed sales. The Appellant's independent report was deemed unconvincing, with the Tribunal noting that even minor under-declarations would have exceeded the VAT threshold. Allegations of improper conduct by HMCE officers were not substantiated. No costs were awarded.

Compulsory re-registration for value added tax - suppression of purchases equating to suppression of sales - registration threshold - right of appeal against assessment - best judgment assessment - taxable supply to friends and familyCompulsory re-registration for value added tax - suppression of purchases equating to suppression of sales - registration threshold - Validity of the decision to compulsorily re-register the Appellant with effect from 24 October 1995 - HELD THAT: - The Tribunal accepted the Commissioners' evidence that there were substantial undeclared purchases when compared with supplier records and that suppression of purchases ordinarily indicates suppression of sales. Despite expressing reservations about aspects of Mr Clark's methodology (notably in relation to the subsequent assessment), the Tribunal found that the overall amount of underdeclaration demonstrated that, had true records been maintained, the Appellant's turnover would have exceeded the relevant registration limits. The Tribunal therefore concluded that the re-registration was properly made and justified on the evidence of systematic underdeclaration of takings. [Paras 38]Appeal against re-registration dismissed and compulsory re-registration upheld.Right of appeal against assessment - best judgment assessment - Whether the Tribunal should entertain an appeal against the assessment raised by the Commissioners - HELD THAT: - The Tribunal recorded that because the Appellant had not rendered a VAT return for the relevant period he did not have a right of appeal against the best judgment assessment. The Tribunal therefore confined its adjudication to the correctness of the re-registration decision and noted that the Appellant could not challenge the assessment by way of this appeal until he had submitted the required return. [Paras 30, 37]No right of appeal against the assessment in these proceedings; the Tribunal proceeded only to decide the re-registration appeal.Taxable supply to friends and family - Whether undeclared purchases said to be for family, relatives or tenants could negate the inference of suppressed business takings - HELD THAT: - The Tribunal accepted the Commissioners' submission that purchases shown in supplier records but not declared cannot be treated as non-business outgoings ipso facto. Even if some purchases were for friends or family, such transactions would constitute taxable supplies which the Appellant had not disclosed. The Commissioners' request to interview named persons was not pursued to completion, but the Tribunal treated undisclosed purchases as supporting the conclusion of undeclared business turnover. [Paras 28, 29, 36]Undeclared purchases attributable to family, relatives or others do not negate the inference of suppressed business takings and may themselves constitute taxable supplies relevant to registration.Final Conclusion: The Tribunal dismissed the appeal and upheld the Commissioners' compulsory re-registration of the Appellant effective 24 October 1995; the Appellant had no right in these proceedings to challenge the best judgment assessment in the absence of a submitted return. No order as to costs.

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