TaxTMI 
TaxTMI 
2021 (12) TMI 1122
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....cquittal in judicial proceedings, is the question that we are tasked to decide on this writ petition. THE FACTS GIVING RISE TO THE 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 dated October 23, 2013 relate to an incident of July 10, 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 July 10, 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 Anti-Corruption Bureau of the Central Bureau of Investigation, Mumbai, (hereafter 'the ACB/CBI", for short) registered a First Information Report (hereafter "FIR", for short) dated December 31, 2004. One Hemant....
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....icial 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 May 19, 2009, the Board sent a reminder to the DGV for furnishing the draft charge-sheet. This was followed by second and third reminders dated September 10, 2009 and May 3, 2010, respectively. By a letter dated May 19, 2010, the DGV wrote to the Board that the Commissioner of Customs (General), Mumbai (hereafter, "the CoC (G)", for short) by his letter dated January 1, 2009 had forwarded the draft charge-sheet along with authenticated copies of the relied upon documents to the AD-V Section of the Board. The Board by its letter dated September 9, 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 September 23, 2009 furnished a copy of the draft charge-sheet. Insofar as authenticated copies of the relie....
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....ion to duty and acted in a manner unbecoming of a Government servant. On November 2, 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 December 11, 2013 and the relied upon documents were received by the petitioner. Thereupon, the petitioner submitted his final reply to the chargesheet on December 30, 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 December 18, 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 dated October 23, 2013 issued to him was challenged. By an interim order dated May 5, 2015, the Tribunal granted stay of further proceedings of inquiry till the disposal of the....
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....h does not amount to offence. Thus, whether the accused no.3 had sanctioned or not sanctioned duty drawback, he did not commit any offence." (emphasis ours) The petitioner, after his acquittal by the Special (CBI) Court, amended his original application and brought the judgment on record to impress upon the Tribunal that there was indeed no case of conspiracy to cheat the Government and that he had not committed any offence. However, the Tribunal by its judgment and order dated February 21, 2020 dismissed the original application on the grounds assigned therein. Aggrieved thereby, the petitioner has invoked the writ jurisdiction of this Court. The main prayers read as follows: "(a) that this Hon'ble Court be pleased to issue a writ of certiorari or other appropriate writ, order or direction calling for record and proceedings leading to the passing of the judgment dated 21st February, 2020 passed by the CAT, Mumbai Bench in Original Application No.99 of 2015 (Exhibit A) and after examining the legality and propriety of the same this Hon'ble Court be pleased to quash and set aside the said judgment; (b) that this Hon'ble Court be pleased to issue a writ of cer....
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.... ensued from the detection done in 2004, four years later to the incident in 2000 to investigation (sic), filing of FIR in 2004, approval of charge sheet even while criminal case was going on and then, after the Inquiry Officer and Presenting Officers were appointed in December 2014, when the applicant filed this OA in February 2015 and thereafter obtained interim orders on 05.05.2015 which continue till today. They submit they have been taking prompt action in the matter. Further, they point out that the applicant himself had argued in the present case while obtaining interim orders and as contained in his pleadings, that when the criminal proceedings were on identical facts, documents and witnesses, the disciplinary proceedings should be postponed. Therefore, it is quite plain that the applicant cannot be permitted to stand on both stools by arguing on the one hand, that the disciplinary proceedings should be stayed and then claiming the benefits of quashing the disciplinary proceedings on the ground of delay. The Applicant has not, at any stage of the proceedings, explained how he has been prejudiced in the matter. An argument could be made that he had undergone mental agony but....
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....supra) and paragraph 12 of the decision in Appala Swamy (supra) were clearly misplaced. That apart, the Tribunal was unjustified in commenting that the petitioner had sought for quashing of the disciplinary proceedings only on the ground of delay. According to him, a cursory glance at the events since involvement of the petitioner transpired, would leave none in doubt that the respondents took all of 5 (five) years to issue a charge-sheet wherefor the delay was attributed to correspondence between authorities and movement of the relevant file from one desk to another desk of the officers who had the occasion to deal with the same. Movement of file from one desk to another and/or exchange of correspondence, it was argued, cannot be cited as an explanation for the delay in issuing the charge-sheet. Office Memorandum dated May 23, 2000 issued by the CVC was referred to which provides that memorandum of charges is required to be issued within a month from the date of receipt of advice from the CVC; and in the instant case the advice having been received on February 4, 2008, by no stretch of imagination could the delay in issuing the charge-sheet on October 23, 2013 be held to be reason....
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....ng the original application has caused failure of justice, Mr. Ramamurthy prayed for quashing of the judgment and order under challenge, setting aside of the disciplinary proceedings including the charge-sheet dated October 13, 2013 and all follow-up steps, as well directions on the respondents to grant the petitioner all consequential service benefits including due promotion as Chief Commissioner of Customs and Central Excise and further promotions, if any, from the due dates as well as enhanced pension, gratuity, etc. from the date of his superannuation along with interest @ 18% per annum. ARGUMENTS ON BEHALF OF THE RESPONDENTS 12. Mr. Shetty, learned advocate for the respondents vehemently opposed the writ petition. According to him, the judgment of the Tribunal is well reasoned and well-written and the same having dealt with each and every point that was raised on behalf of the petitioner, it does not warrant any interference. 13. Referring to the affidavit-in-reply filed by the respondents before the Tribunal, Mr. Shetty sought to contend that satisfactory explanation had been proffered as to why the charge-sheet could not be issued and served on the petitioner earlie....
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....ue by the Government forming the genesis of the departmental chargesheet dates back to July, 2000. An audit having revealed the said incident, the FIR was registered on December 31, 2004. Although the petitioner's involvement in any offence did not transpire as on date the FIR was registered, at least in September, 2007, the internal report of the ACB/CBI hinted at the petitioner's involvement. It is not the definite case of the respondents that despite exercise of due diligence, the petitioner's involvement did not transpire till September, 2007. Be that as it may, as far back as on January 23, 2008, the Board had recommended departmental action, inter alia, against the petitioner. Even if we discount the period between July, 2000 and January 23, 2008 (since the petitioner's involvement allegedly came to light only in September, 2007 and the Board recommended departmental action in January, 2008), the period between January 23, 2008 and October 23, 2013, i.e., exactly a period of 5 (five) years and 9 (nine) months, has to be identified as the relevant period; and it would require examination as to whether the delay in not issuing the charge-sheet within a reasonable period from Ja....
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....et is subjected to challenge on the ground that there has been inordinate delay in issuing it, thereby resulting in the charge(s) becoming stale, it is the obligation of the disciplinary authority to satisfactorily explain the reasons for the delay. 21. Chaman Lal Goyal (supra) is the next decision of the Supreme Court where the question of delay in serving the charges was considered. Mr. Shetty has relied on paragraph 9, where it has been held as follows: "9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too lo....
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....iplinary proceedings according to the relevant rules should be allowed to take their own course, and the prejudice suffered by the delinquent due to delay which would defeat justice, held: "19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated ....
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....nd force. Ultimately, holding that the stand taken by the respondent was not convincing and only an afterthought to give some explanation for the delay, the Court quashed the charge-sheet. It would be of relevance to note what the Court ruled in paragraph 11, which is quoted below: "11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted discipl....
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....elinquent employee and must reach the conclusion which is just and proper in the circumstance. It was also held that proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. It was stressed that gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. 28. The learned Judge presiding over the Division Bench in Prabhash Chandra Mirdha (supra) had the occasion to author the decisions in Chairman, Life Insurance Corporation of India vs. A. Masilamani, reported in 2013 6 530, and Anant R. Kulkarni vs. Y.P. Education Society, reported in (2013) 6 SCC 515. In the latter decision, the Court observed as follows: "14. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limits of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Theref....
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....ivision Bench decision of the Patna High Court in Binay Kumar Singh vs. State of Bihar & Ors., reported in 1993 (3) SLR 327. The Court held that taking steps to collect necessary papers/particulars in relation to the proposed charges for 4 (four) years could hardly be said to be cogent explanation and since the allegations had become stale by lapse of time, the disciplinary proceeding was not allowed to continue. 31. The principles that can be culled out from the aforesaid decisions may be summarized as below: a. It would always be desirable to initiate disciplinary proceedings immediately after the alleged misconduct is detected but if charge-sheet is issued after a considerable length of time has passed since such detection, it would be unfair to the charged officer to proceed against him on the basis of stale charges. b. Disciplinary proceedings may not be interdicted at the stage of charge-sheet and should be allowed to proceed according to the relevant rules since a charge-sheet does not affect any legal right of the delinquent unless, of course, it suffers from an invalidity that strikes at the root of the proceedings. c. If there is delay in ini....
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....mpt to ascertain whether retirement on superannuation could form one of the factors that the Courts ought to bear in mind while considering a challenge of the present nature, may be made. More so, because incidents are not rare where an alleged act of omission/commission amounting to misconduct remains under wraps for several years and days prior to retirement of the concerned employee, proceedings are initiated by drawal of charge-sheet by the disciplinary authority for reasons well-known. 33. Superannuation, as is well known, means discharge from a post on account of the age fixed therefor uniformly for all or a particular category of service holders and is a kind of retirement. Service rules relating to public servants invariably provide that on attaining a specified age, a public servant has to demit office and retire from service. It is generally felt that after reaching a particular age, a public servant becomes incapable to discharge the job entrusted to him for health reasons and, therefore, needs to be replaced by younger blood. Even though a public servant is mentally alert and physically fit to discharge his duty and age is merely a number for him, yet, he has to reti....
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.... as satisfactory for delayed initiation of disciplinary proceedings; if not, what consequence should follow. Should the delay be held to have been satisfactorily explained, it would require scrutiny as to what extent is prejudice required to be shown or proved if the impugned action of the disciplinary authority is alleged to violate principles of natural justice which now includes within its ambit the right of receiving a fair hearing. In other words, has the petitioner suffered any prejudice thereby warranting interdiction. 36. Beginning with the first aspect, there can be no quarrel with the proposition that whether or not disciplinary proceedings initiated after long delay should be interdicted, must depend on the facts of each case. Neither can there be predetermined principles applicable to all cases and in all situations where there is delay in initiating/concluding the disciplinary proceedings nor can there be any hard and fast rule in that regard. These principles flow from the decisions in Chaman Lal Goyal (supra), N. Radhakishan (supra) and V. Appala Swamy (supra) relied on by the Tribunal in the impugned judgment. However, with all the respect and humility at our com....
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....d above in paragraph 3 and 17 (supra). 40. A recapitulation of the said events touching upon initiation of disciplinary proceedings against the petitioner would reveal that during the relevant period, i.e., after involvement of the petitioner transpired in September, 2007 till issuance of the charge-sheet on October 23, 2013, there were periods in between when the respondents are found to be in deep slumber. On February 4, 2008, initiation of major penalty proceedings against the petitioner was advised by the CVC. The Board then made a request on May 12, 2008 to the DGV to furnish draft charge-sheet to be issued to the petitioner. After a year, on May 19, 2009 to be precise, the Board sent a reminder to the DGV for furnishing the draft charge-sheet. Second and third reminders dated September 10, 2009 and May 3, 2010, respectively, followed. Why was the first reminder sent after a year, and why the second and third reminders were separated by 6 (six) months have not been explained. On May 19, 2010, the Board was informed by the DGV that the CoC (G) by his letter dated January 1, 2009 had forwarded the draft charge-sheet along with authenticated copies of the relied upon docume....
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.... 23, 2013 and which, by exercise of due diligence, could not be avoided. There does not seem to be any insurmountable impediment that could not be taken care of by the disciplinary authority, if he was really diligent. Neither was there any order of stay passed by any competent court of law nor was there any administrative order that restrained the disciplinary authority from placing the file on the fast track and drawing up the disciplinary proceedings by issuance of charge-sheet within a reasonable time on detection of involvement of the petitioner. Office Memorandum dated May 23, 2000 issued by the CVC required issuance of chargesheet within a month of receipt of advice of the CVC which, in the instant case, was received on February 4, 2008. Even if the said requirement is treated to be directory and failure to draw up the charge-sheet within a month of receipt of the advice of the CVC may not be interdicted only on such ground, we would consider a period of 6 (six) months from receipt of such advice to be a reasonable period within which the charge-sheet should have been drawn up, extendable to a year in exceptional cases. The analogy is drawn looking at the decision of the Sup....
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....n by Hon'ble D.P. Madon, J. speaking for the majority in Union of India vs. Tulsiram Patel, reported in (1985) 3 SCC 398. In A.R. Antulay vs. R.S. Nayak, reported in (1988) 2 SCC 602, Hon'ble Sabyasachi Mukharji, J. speaking for the majority observed that "(N)o prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity". 43. The petitioner has not specifically argued that issuance of a charge-sheet containing stale charges is arbitrary. However, on facts and in the circumstances, it may not require much application of mind for a sensible person to be inclined to the view that the action complained of is indeed arbitrary. An arbitrary action offends Article 14 and is, thus, void. Since no prejudice is required to be proved for violation of a Fundamental Right, the question of proving prejudice may not arise. However, since issuance of the charge-sheet is not challenged on the ground of arbitrariness, we leave it for a decision in an appropriate case in future as to whether delayed issuance of charge-sheet amounts to arb....
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....rise out of the same set of facts, not being able to know the fate of consideration is itself a prejudice writ large and the petitioner may not separately be required to prove prejudice. (vi) Had the respondents delayed issuance of the chargesheet beyond October 31, 2013, rule 9(2)(b)(ii) of the Central Civil Services (Pension) Rules, 1972 would have barred initiation of disciplinary proceedings. This gives reason to believe that the disciplinary authority activated himself only on the verge of the petitioner's retirement on superannuation and to overcome the statutory bar, the charge-sheet was issued a week prior thereto. If indeed the disciplinary authority was serious enough to have an early conclusion of the proceedings, appointment of the Inquiry Officer also ought not to have taken almost a year after the charge-sheet. (vii) The petitioner did plead in the original application why and how he is likely to be prejudiced if the enquiry were conducted into the stale charges. 46. Now let us trace the factors against the petitioner: (i) Technicalities should not be allowed to stand in the way of disciplinary proceedings and the same should be allowed t....
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....e not proved beyond reasonable doubt and that it was not recorded to be a case of honourable acquittal. We have set out the findings of the Special Court supra. Perusal of paragraphs 19 and 20 of its judgment, emphasized by us, would leave none in doubt of findings being returned on appreciation of the evidence on record that evidence led by the prosecution did not point to the guilt of the petitioner and also that he had not committed any wrong or offence. PW-4, Ashok Chaudhary, did depose that the petitioner, accused no.3, had allowed the duty drawback in manual file S-2 and S-10; however, those files were not part of the evidence led by the prosecution. That apart, Ashok Chaudhary could not remember whether file S-2 and S-10 were in respect of M/s. Pacific International. Regard being had to such evidence, the Court was of the view that it cannot be said beyond reasonable doubt that it was the petitioner, accused no.3, who had sanctioned the duty drawback in this case. The Court did not stop at that; it went on to record in the next paragraph that even if it is assumed that the petitioner, accused no.3, had sanctioned the duty drawback, he did not commit any wrong in view of lega....
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....he sealed cover be opened and the recommendation of the Departmental Promotion Committee be considered. If the petitioner had been recommended, an order of promotion be issued as Chief Commissioner of Customs and Excise. Such order will take effect from the date the peers of the petitioner were promoted. The petitioner shall not be entitled to any arrears of monetary benefit for such promotion, except that his pension shall be calculated based on the pay that he would have last drawn as such Chief Commissioner. Let the order of promotion be issued within a month. If the Departmental Promotion Committee has not recommended the petitioner for promotion, he shall be so intimated. In such case, his pension shall be calculated based on the last pay drawn by him. The terminal benefits including pension, gratuity and other benefits to which the petitioner is entitled, based on promotion or otherwise, as the case may be, shall be released as early as possible but positively within 3 (three) months of issuance of the order of promotion as above. The petitioner shall be entitled to interest on such unpaid amount at the highest rate that nationalized banks offer for fixed deposits. 51. Wri....
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....ents instituted a summary suit in this Court for recovery of money against the said contractor and such suit was decreed on February 27, 2006. More than 40 (forty) months after the aforesaid suit was decreed, the petitioner was served with Memorandum of Charges dated December 18, 2009 under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Article of Charge-I alleged that the petitioner had not reconciled the monthly truck statement received from CSD Depot, Bareilly with the truck dispatch register of Base depot and thereby non-receipt of the consignment at Bareilly depot went unnoticed. Due to the petitioner's negligence, the department had suffered a loss of Rs. 10,71,450/-. The allegation in Article of Charge-II was that the petitioner had failed to "check the register, initialed and put up a letter to Traffic Officer, Base Depot towards the release of Bank guarantee amounting to Rs. 2,29,100/- against the transporter M/s. Adarsh Parivahan without confirming any dues from the transporter". Vide Article of Charge-III, the petitioner was charged with failing to advise "the concerned staff working under him to monitor the receipt details of ....
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....ons was tendered after completion of the pleadings and when the arguments were in progress. We find that it is on the basis of the sequence of events and the action taken by the respondents as mentioned in the synopsis but which are not part of the pleadings that the Tribunal proceeded to hold that the delay has been satisfactorily explained. In our opinion the Tribunal could not have relied upon the events mentioned in the synopsis which events were clearly beyond the pleadings of the materials on record. 10. In this view of the matter, in our opinion, the matter needs to be remitted back to the Tribunal for a fresh decision on merits and in accordance with law. Hence the following order. ORDER 1. Impugned order dated 23/8/2012 passed by the Tribunal in O.A. No.184 of 2010 and O.A. No.243 of 2010 is quashed and set aside. 2. O.A. No.184 of 2010 and O.A. No.243 of 2010 are remitted back to the Tribunal for a fresh decision on merits and in accordance with law. 3. The Tribunal is requested to hear and decide the O.As. as expeditiously as possible and preferably within the period of six months from today. 4. Interim order granted by thi....
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....les of charge do not indicate misconduct or are without valid basis are, therefore declined. The OAs are accordingly dismissed as devoid of merits. The interim orders granted earlier in both these cases are withdrawn with immediate effect and respondents are directed to complete the enquiry expeditiously. There shall be no order as to costs." 57. Incidentally, O.A. No.184 of 2010 was considered along with another O.A. No.243 of 2010 and the same also came to be dismissed by the aforesaid order. The latter original application was by another employee who was sought to be similarly proceeded against like the petitioner. 58. Perusal of the impugned judgment would not reveal that the Tribunal was considering O.A. No.184 of 2010 on remand, pursuant to the order this Court. The earlier order dated August 23, 2012 of the Tribunal dismissing O.A. No.184 of 2010 having been set aside by this Court by the order dated January 24, 2018 on the ground that the reply affidavit did not disclose satisfactory reasons for delayed issuance of the charge-sheet and that the Tribunal erred in placing reliance on the synopsis of events, which did not form part of the pleadings, and also since no add....