TaxTMI 
TaxTMI 
2018 (12) TMI 1119
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.... the Presenting Officer. 2. The petitioner, who was an Indian Revenue Service Officer of 1975 Batch, superannuated from the post of Member, Central Board of Excise and Customs (CBEC) on 31.03.2011. It appears that while she was in service, a complaint was made against the petitioner in respect of availment of exemption under Notification bearing No.39/2001-CE, dated 31.07.2001 by one M/s. Sunshine Oleochem Pvt. Ltd., and the Directorate of Vigilance, Central Board of Excise and Customs forwarded the same on 04.03.2011 to the Additional Secretary and CVO (Rev. Hqrs.), Deptt. of Revenue, Ministry of Finance. 3. On 11.03.2011, the Ministry of Finance, Deptt. of Revenue issued a memorandum dated 11.03.2011 to the petitioner calling for a reply on the said issue. The petitioner sent a reply on 16.03.2011. 4. It appears that the communication dated 04.03.2011 had also been forwarded to the Central Vigilance Commission (CVC). While the matter was still pending consideration in the Ministry of Finance, on 21.03.2011, the CVC issued an office memorandum addressed to the Ministry of Finance stating that the CVO, Deptt. of Revenue may expedite views/ comments on the complaint against....
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....the overwhelming evidence gathered by the department for denial of exemption on all the products of M/s SOPL. Smt. Sharma thus failed to take corrective measures to safeguard government revenue and caused loss of revenue of Rs. 23.79 crore upto 24.05.2010. Hence, the Commission would advise initiation of major penalty proceedings under rule 98 of CCS (Pension) Rules, 1972 against Smt. Vijai Lakshmi Sharma, Member, CBEC (Retd.)"(emphasis supplied) 7. Consequently, the impugned charge-sheet was issued to the petitioner vide memorandum dated 09.08.2012 under Rule 9 of the CCS (Pension) Rules, 1972, since she had already superannuated on 31.03.2011. 8. The submission of learned counsel for the petitioner is that the final decision had been taken by the competent authority, namely the Ministry of Finance as communicated by the Revenue Secretary, Ministry of Finance to the CVC in its communication dated 25.03.2011- to not initiate any enquiry, in view of the Petitioners reply to the memorandum dated 11.03.2011. The submission is that having arrived on the said final decision, it could not have been re -opened merely on the advice of the CVC. The decision has to be taken independent....
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....l has submitted that on the memorandum dated 11.03.2011 issued to the petitioner, no decision was communicated to her to say that the show cause notice/ memorandum had been withdrawn after taking into account her reply. The correspondence undertaken by the Ministry of Finance with the CVC was inter - departmental internal correspondence, and the same was not addressed to the petitioner. Thus, no "order" was passed in law, much less communicated to the petitioner, to not initiate the disciplinary proceedings against the petitioner. Unless communicated, an internal departmental communication does not partake character of an order. In this regard, reliance is placed on Laxminarayan R. Bhattad V. State of Maharashtra, 2003 (5) SCC 413, wherein the Supreme Court observed: "The correspondences exchanged between the parties also do not show that the minutes drawn fructified in an order conferring any legal right upon the appellant. By reason of the endorsement in the note-sheet no policy decision had been taken. It is now-known that a right created under an order of a statutory authority must be communicated so as to confer an enforceable right. (See Bachhittar Singh Vs. State of....
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....on the CVC, inter alia, includes the responsibility of inquiring into or causing an inquiry or investigation to be made into any complaint against any official, inter alia, belonging to All India Services serving in connection with the affairs of Union and Group A Officers of the Central Government, in cases where the complaint alleges commission of offences under the Prevention of Corruption Act and an offence with which such a public servant may be charged under the Cr PC at the same trial. Thus, when the CVC issued the communication dated 21.03.2011 to the Ministry of Finance requiring the CVO, Department of Revenue to expedite the views/ comments on the complaint made against the petitioner, the said communication could not have been brushed aside and a final decision taken, including by the Finance Minister, to close the complaint against the petitioner without holding consultation with the CVC. The views of the CVC were bound to be elicited and considered before taking any such decision to close the complaint. Pertinently, the communication dated 25.03.2011 merely states that the complaint against the petitioner "is baseless and unfounded". However, the basis on which the sai....
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....lace, there was no closure. Merely because, on consideration of the advice given by the CVC, the competent authority has decided to issue the charge sheet to the petitioner vide memorandum dated 09.08.2012, it does not follow that the competent authority has not taken an independent decision. If the competent authority did not concur with the advice of the CVC, it was open to it to correspond with the CVC and place before its reasons for not agreeing with the advice of the CVC contained in the OM dated 30.05.2012. This is so mandated by Section 17 of the CVC Act. Section 17(3) shows that once the advice of the CVC is received, it is for the Central Government to consider the same and take appropriate action and, in case the Central Government does not agree with such advice of the Commission - for reasons to be recorded in writing, it is obliged to communicate the same to the Commission. 20. Section 17 of the said Act, insofar as it is relevant, read as follows: "17. Report of any inquiry made on reference by Commission to be forwarded to that Commission.- (1) The report of the inquiry undertaken by any agency on a reference made by the Commission shall be forw....