TaxTMI 
TaxTMI 
2024 (3) TMI 396
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....ral Administrative Tribunal, Mumbai Bench, Mumbai (hereinafter referred to as the "Tribunal") whereby the Original Application No. 436 of 2014 challenging the punishment order dated 26th April, 2013 was dismissed. 4. The necessary facts, which are relevant for the purposes of appropriately deciding the issue raised in this petition, are stated thus. The petitioner while working on the post of Assistant Commissioner, Customs, was issued a charge-sheet dated 20th /24th August, 2007 which contained three charges. Articles of charges contained in the charge memorandum are extracted hereinbelow: - "Article of Charge-I: That he erroneously cancelled three bank guarantees concerning Bills of Entry Viz. 1) S/9-RE-105/2003 Gr. V-A, 2) S/9-RE-106/2003 Gr. V-A and 3) S/9-RE-128/2003 Gr. V-A, without proper scrutiny and verification of documents put up to him and without ensuring compliance of the norms prescribed by the Notification No. 27/2002 dated 01.03.2002. Article of Charge-II: That he failed to notice that the extension of time for re-export in respect of three Shipping Bills viz. 1) 1000000467, 2) 1000000470 and 3) 1000000468 all dated 13.02.2004 was given by an un-authorised of....
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....ion, who submitted his comments and representation to the said report vide letter dated 6th October, 2009. Reference of the matter was also made to the Union Public Service Commission (UPSC), whereupon the UPSC vide its communication dated 2nd January, 2013 advised imposition of penalty of withholding of 10% of monthly pension for a period of three years. The petitioner submitted his representation to the said advice tendered by the UPSC vide his letter dated 9th March, 2013. 7. The Disciplinary Authority, however, passed the impugned order dated 26th April, 2013 whereby the penalty of withholding of 10% of monthly pension for a period of three years has been imposed upon the petitioner. 8. The petitioner filed Original Application before the Tribunal challenging the punishment order dated 26th April, 2013 where the proceedings ended in dismissal of the Original Application by the Tribunal vide judgment and order dated 23rd January, 2020. It is this judgment and order dated 23rd January, 2020 passed by the Tribunal, apart from the punishment order dated 26th April, 2013, which are under challenge in this writ petition. 9. Impeaching the punishment order as also the judgment and ....
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....harge against the petitioner was that he failed to conduct and maintain proper supervision on the functioning of his subordinate employees and also failed to take all possible steps to ensure integrity and devotion of duty of the government servants who were under his control and authority while petitioner was posted as Assistant Commissioner of Customs, Group V-A, new Custom House, Mumbai. 13. As per the imputation of charge, the allegation against the petitioner was that a pre-dated Bill of Lading dated 28th February, 2004 was presented by the importer on 21st May, 2004 whereas the "Let Export Order" was granted after 28th February, 2004, however, the petitioner failed to check the said date and failed to maintain absolute integrity and shown lack of devotion to duty by cancelling three bank guarantees without proper scrutiny and verification of documents. 14. While denying the charges, the defence taken by the petitioner to the memorandum of charges was that the bonds and bank guarantees were cancelled on the basis of Bill of Lading dated 28th February, 2004 which was within six months from the date of import clearance of goods and that cancellation was done based on the recom....
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.... duty has been protected by issuance of demand notice (Ex. D-I) which has been confirmed vide Order-in-Original (Ex. D-II) passed by Commissioner of Customs (Imports), Mumbai. In the Order-in-Original (Ex. D II), the Commissioner of Customs (Imports) has held that the liability in the instant case is a continuing liability till the conditions of the said notification are satisfied and the time bar under section 28 of the Customs Act, 1962 would not apply. I also find that the Bond and Bank Guarantee were mere mechanism for recovery of the differential duty in case the party did not pay up the amount voluntarily. Once the duty differential is payable, the same can be recovered under section 142 of the Customs Act, 1962. In any case, cancellation of bonds and bank guarantees cannot change the position regarding duty liability of the importer. This can at most make the job of the department a bit difficult to recover the differential duty. Therefore, there is no revenue loss because of cancellation of bonds and bank guarantees by the Charged Officer. However, cancellation of Bonds and Bank Guarantees has made the recovery of differential amount of duty." 16. On the basis of analysis....
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....unt of duty, the Charged Officer was required to verify as to whether differential duty, if any, was paid, before cancellation of bonds and bank guarantees. There is no dispute on the fact that it was the prime responsibility of the Appraiser to verify all the documents submitted by the importers along with the application for cancellation of bonds and bank guarantees. The Appraiser failed to point out the liability of the importer about the differential amount of duty and recommended cancellation of bonds and bank guarantees. The Charged Officer approved the note of Appraiser without scrutinizing all the documents, himself, which shows lack of devotion on his part. The failure of the Charged Officer to notice non-payment of differential amount of duty by the importers, was due to improper scrutiny of documents as mentioned in the Article of Charge-I. However, as there is no allegation in the Charge Memorandum that the Charged Officer had any mala fide intention and also circumstances of case suggest that the Charged Officer cancelled the bonds and bank guarantees on the basis of Bills of Lading and recommendation of the Appraiser, I am of the view that charges that the Officer fai....
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....e integrity and devotion to duty of his subordinate officers. I am convinced that for sustaining such charge repeated incidences are required. There is no evidence to suggest that such omissions and commissions by the subordinate officers had taken place on many occasions. Therefore, the article of charge-III is not proved." 19. Having recorded the findings in respect of all the three Articles of Charges by specifically finding that charges that Charged Officer failed to maintain absolute integrity or he is unbecoming of a government servant, were not found proved and no evidence was found that any omission or commission by the subordinate officers of the petitioner had taken place. Inquiry Officer, however, in para 21 of the inquiry report proceeds to record that charge in Article of Charge-I is proved, charge in Article of Charge-II is partly proved and charge in Article of Charge-III is not proved. The Inquiry Officer also states in the inquiry report that by such act of commission and omission, the petitioner exhibited lack of devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the Conduct Rules, 1964, however, violation of Rule 3(1)(i) and 3(1)(iii) o....
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....lf under any financial or other obligations to any individual or organization which may influence him in the performance of his official duty; (xv) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, his family or his friends; (xvi) make choices, take decisions and make recommendations on merit alone; (xvii) act with fairness and impartiality and not discriminate against anyone, particularly the poor and the under-privileged sections of society; (xviii) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices; (xix) maintain discipline in the discharge of his duties and be liable to implement the lawful orders duly communicated to him; (xx) maintain confidentiality in the performance of his official duties as required by any laws for the time being in force, particularly with regard to information, disclosure of which may prejudicially affect the sovereignty and integrity of India, the security of the State, strategic, scientific or economic interests of, the State, friendly relation with foreign countries or lead to incitement of an o....
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....tegrity of the petitioner; the finding rather is that there was no malice or mala fide intent on the part of the petitioner and further that there was no allegation of any corrupt practice or extending undue benefit to the importer, against the petitioner. 23. Accordingly, neither is there any material nor any finding recorded by the Inquiry Officer or the Disciplinary Authority about doubtful integrity of the petitioner even qua the conduct of the petitioner which became subject matter of disciplinary proceeding against him. To charge and punish a government servant for violation of Rule 3(1)(i) of the Conduct Rules, 1964, it should be proved that the officer concerned has failed to maintain absolute integrity. Since there is nothing on record which even remotely suggest that petitioner failed to maintain absolute integrity, no punishment on that count will be permissible against him. The finding recorded by the Inquiry Officer as also by the Disciplinary Authority are otherwise, as discussed above. Hence, in this view of the matter the petitioner in the instant case cannot be said to have found to have failed to maintain absolute integrity. 24. So far as Rule 3(1)(ii) of the Co....
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....rt took place after expiry of six months from the date of importation. The Inquiry Officer has recorded a finding that the petitioner did not have any mala fide intention and that the circumstances of the case suggest that he cancelled the bonds and bank guarantees relying on Bills of Lading and on the recommendation of the Appraiser. The finding by the Inquiry Officer is also to the effect that the charge that the petitioner failed to maintain absolute integrity or acted in a manner unbecoming of a government servant are not proved. 27. We also notice that any penalty under Rule 9 of the Pension Rules, 1972 can precipitate in two circumstances, namely, (i) if a government servant is found guilty of grave misconduct or negligence and (ii) such misconduct causes pecuniary loss to the government. From a perusal of the Inquiry Officer's report as also the findings recorded by the Disciplinary Authority in the punishment order dated 26th April, 2013, breach of either Rule 3(1)(i) or 3(1)(ii) or 3(1)(iii) of the Conduct Rules, 1964 is not made out. There is no finding on record relating to pecuniary loss caused on account of the alleged misconduct of the petitioner in the order of puni....