TaxTMI 
TaxTMI 
2019 (4) TMI 1279
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.... has prayed for issue of a writ of certiorari for quashing the judgment and order of Tribunal and to direct respondents to reinstate petitioner after quashing the order of punishment. 3. Facts in brief, as stated in writ petition, are, that a memorandum was issued to petitioner on 12.09.1981 by Officer Incharge, AOC (Records), Trimulgherry, Secunderabad alleging that petitioner was convicted on a criminal charge under Customs Act, 1962 (hereinafter referred to as "Act, 1962"), as a result whereof his "conduct led to conviction" renders him undesirable to be retained in public service and he should be removed. Petitioner was given an opportunity to submit his representation against proposed penalty. Petitioner submitted reply dated 06.10.1981 stating that he has not been convicted on a criminal charge under Act, 1962 and if any such judgment of conviction has been passed by a Court, supply a copy thereof. He further stated that under Section 112 of Act, 1962 a penalty was imposed by Additional Collector of Customs, Muzaffarpur upon petitioner where against he preferred appeal which is pending. Further he said that the said penalty does not come within the purview of "conviction" ....
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....erred. However, inquiry proceeded. 7. It is complained by petitioner that no documents were supplied to him; no oral evidence was recorded before Inquiry Officer, no documents were proved, but Inquiry Officer concluded inquiry and submitted report dated 12.12.1985 holding that charge levelled against petitioner was not proved. Operative part of inquiry report dated 12.12.1985 reads as under: "Hence the inevitable conclusion is that the charge has not been proved against the delinquent officials as there is nothing on record to sustain the charge." (emphasis added) 8. Disciplinary Authority did not agree with inquiry report and vide order dated 12.02.1986 remitted matter again to Inquiry Officer to hold further inquiry keeping into consideration observations made in para 1 of order dated 12.02.1986, which read as under: "(a) case has been concluded only for the reasons that documents supplied by the delinquent official were not attested by any officer as a certified true copies. In this connection, refer to para 14(b), 16, 19 and 21 of Don'ts of Do's and Don'ts pamphlet. (b) the Inquiry Officer, permitted the Assisting Officer to record t....
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....d 31 Jan 81 was upheld and confirmed. (c) The inquiry officer has erred in relying on the statements of the witnesses, unconcerned with the department while recording his findings instead of taking into account the aforesaid orders of the Customs Department especially so when no prosecution witnesses are listed in the charge sheet." 13. Disciplinary Authority also proposed punishment of "Compulsory Retirement" and petitioner was given an opportunity to make representation against said disagreement. 14. Reply was given by petitioner vide letter dated 08.12.1990. Thereafter vide order dated 02.04.1991 punishment of "Compulsory Retirement" was awarded by Officer Incharge, Army Ordinance Corps Record Office, Post Box No. 3, Trimulgherry Post, Secunderabad upon petitioner. 15. Petitioner preferred an appeal before Director General, Ordnance Services, Master General of Ordnance Branch, Army Headquarters, DHQ, New Delhi (hereinafter referred to as "DGOS") vide memo of appeal dated 25.05.1991. When appeal was pending, petitioner received a memorandum dated 30.10.1991 proposing to forfeit pay and allowances, paid over and above subsistence allowance to petitioner during....
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...., AIR 1971 SC 1447; Bhagwati Prasad Dubey vs. The Food Corporation of India, AIR 1988 SC 434; and, Rajendra Prasad Gupta and another vs. State of U.P. and another, 1999(83) FLR 1102. 19. Points (i), (ii), (iv) and (v) can be considered altogether. Charge against petitioner is that he has been imposed penalty by Adjudicating Authorities under the provisions of Act, 1962 for carrying contravened foreign goods from Nepal and this amounts to "conduct unbecoming of a Government servant" and is in violation of Rule 3 of Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as "Rules, 1964"). In support of above charge no witness was cited. Only some documents were relied, as we have noted above. After receiving charge sheet dated 20.12.1983, petitioner submitted a letter dated 27.01.1984 to Officer Incharge AOC (Records) requesting for supply of documents relied in support of charge sheet, mentioned in Annexure-3 thereof. Copies of these documents were supplied to petitioner, whereafter vide letter dated 20.07.1984 he demanded some additional documents for his defence. 20. Major V.K. Nijhawan was appointed as Inquiry Officer by Brig. B.K. Kalra vide order dated 31.0....
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....nal documents were not in his control, hence not possible. This is evident from paras 11, 12 and 13 of inquiry report dated 12.12.1985. 24. Above facts show that documents relied in support of charges were supplied to petitioner but what he insisted upon is production of original documents which could not be produced by Presenting Officer since original documents belong to Custom Department and Presenting Officer had no access to them. In our view, in a departmental proceeding when copies of documents are supplied and it is not shown that said copies are manufactured or tempered, mere fact that original documents are not made available, will not vitiate proceedings as non production of original documents will not make copies of such documents inadmissible in departmental inquiry since Evidence Act, 1872 (hereinafter referred to as "Act, 1872") is not applicable. Therefore, submission that relied on documents were not supplied and opportunity was not given is not accepted. 25. We also find that Inquiry Officer permitted inspection of documents but that was also declined by petitioner and his Defence Assistant. Therefore, it cannot be said, in the entirety of facts as discussed....
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....in the interest of the security of the State, it is not expedient to hold such inquiry." (emphasis added) 28. However, subsequently a regular departmental inquiry has been conducted and, therefore, this argument that penalty does not amount to "conduct led to conviction" is of no consequence for the reason that department has initiated regular disciplinary inquiry and conduct of petitioner in carrying contraband foreign goods from Nepal to India is a "conduct unbecoming of a Government servant" which constitute misconduct under Rule 3 of Rules, 1964. It is not a case that departmental inquiry has been dispensed with and petitioner has been punished. Hence, this question is also answered against petitioner. 29. Now we come to Point (iv) in support whereof Supreme Court's judgment in K.R. Deb (supra) has been relied. It cannot be doubted that in K.R. Deb (supra) construing Rule 15 of Rules, 1965 Supreme Court said that in a particular case if no proper inquiry has been held and some serious defect has been crept into inquiry or some important witnesses were not available at the time of inquiry or were not examined for some other reason, disciplinary authority may ask Inquir....
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....rities. The question is, whether aforesaid two orders were sufficient to hold petitioner guilty of misconduct under Rule 3 of Rules, 1964, which reads as under: "3. General.-- (1) Every Government servant shall at all times-- (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant. (iv) commit himself to and uphold the supremacy of the Constitution and democratic values; (v) defend and uphold the sovereignty and integrity of India, the security of the State, public order, decency and morality; (vi) maintain high ethical standards and honesty; (vii) maintain political neutrality; (viii) promote the principles of merit, fairness and impartiality in the discharge of duties; (ix) maintain accountability and transparency; (x) maintain responsiveness to the public, particularly to the weaker section; (xi) maintain courtesy and good behaviour with the public; (xii) take decisions solely in public interest and use or cause to use public resources efficiently, effectively and economically; (xii....
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....has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing. Explanation I.- A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected to him shall be deemed to be lacking in devotion to duty within the meaning the cause (ii) of sub-rule (1). Explanation II.- Nothing in clause (ii) of sub-rule (2) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities." 33. It is said that carrying of contraband goods by itself is not a serious misconduct under Rules, 1964. What items were actually carried by petitioner and whether carrying of such items was only an irregularity attracting higher rate of custom duty in the form of penalty or the goods which could not have been permitted to be imported in the country a....
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.... will treat such orders to be a proved misconduct and it would not require any defence evidence and in such case, departmental inquiry would be nothing but a formality and an eye wash leaving no scope of defence to delinquent employee and thereby department can always claim exemption from proving the charge though onus lies upon department to prove charge. 36. At this stage, we would also like to point out with reference to statutory provisions that under Act, 1962 there is no word defined as "contraband items" or "contraband goods". Act, 1962 contemplates certain kinds of goods like imported goods, prohibited goods, notified goods, specified goods and dutiable goods. 37. Terms "imported goods" and "prohibited goods" are defined in Section 2(25) and (33) and read as under: "(25) "imported goods" means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption." "(33) "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions s....