Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 20TH DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 OP (CAT) NO. 30 OF 2024 AGAINST THE ORDER/JUDGMENT DATED 03.07.2023 IN OA NO.276 OF 2022 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER/S:
P.N.BALACHANDRAN AGED 70 YEARS S/O.LATEP.NARAYANAN, ASSISTANT COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS -RETD, 71/1589, 'PRIYA', 8TH AVENUE, BABY SMARAKA ROAD, ELAMAKKARA, COCHIN, PIN - 682026 BY ADV C.S.GOPALAKRISHNAN NAIR RESPONDENT/S:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI, PIN - 110001 2 CHAIRMAN CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, NORTH BLOCK, NEW DELHI, PIN - 110001 3 THE COMMISSIONER OF CGST AND CENTRAL EXCISE GST BHAVAN, 115, MAHARSHIKARVE ROAD, OPP.CHURCH GATE STATION, MUMBAI, PIN - 400020 4 CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS CENTRAL TAX, CENTRAL EXCISE AND CUSTOMS CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN, PIN - 682018 5 SECRETARY MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, NORTH BLOCK, NEW DELHI, PIN - 110001
-2- O.P.(CAT) No. 30 of 2024 6 SECRETARY UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, NEW DELHI, PIN – 110069 SRI. THOMAS MATHEW NELLIMOOTTIL, SC OTHER PRESENT:
SRI K S PRENJITH KUMAR THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
-3- O.P.(CAT) No. 30 of 2024 JUDGMENT A. Muhamed Mustaque, J.
The petitioner was proceeded for disciplinary action.
Consequent upon the disciplinary action, penalty was imposed withholding 30% admissible pension for a period of five years and also withholding 30% of gratuity admissible permanently. It is to be noted that on the challenge made by the petitioner, the Central Administrative Tribunal noted that charge memo was served without following the procedure. Accordingly, it was set aside. The Department accepted it and also withdrew the penalty imposed and a fresh charge memo had been served. It is at this juncture, the petitioner approached this Court challenging order of the CAT to the extent giving liberty to issue fresh charge memo and also charge memo issued pursuant to the direction of the CAT.
2. The petitioner also has a claim for promotion and interest on gratuity. We note that the challenge to a fresh charge memo is not maintainable before this Court bypassing CAT. If the charge memo cannot withstand any test of law, that can be challenged before the
-4- O.P.(CAT) No. 30 of 2024 CAT itself. The claim for promotion and interest etc will depend upon the final outcome of the said challenge.
We give liberty to the petitioner to challenge the fresh charge memo in accordance with law before the Tribunal. With the liberty as above, this Original Petition is dismissed.
sd/-
A. MUHAMED MUSTAQUE JUDGE sd/-
SHOBA ANNAMMA EAPEN JUDGE das
-5- O.P.(CAT) No. 30 of 2024 APPENDIX OF OP (CAT) 30/2024 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF CHARGE MEMORANDUM NO.50/2009 DT:15.7.2009 ISSUED BY THE 2ND RESPONDENT Annexure A5 A TRUE COPY OF THE MEMO F.
NO.14011/7/2006-AD.V.(B)
DT:10.3.2014 ALONG WITH A COPY OF THE INQUIRY REPORT BY THE 2ND RESPONDENT Annexure A5(a) A TRUE COPY OF THE DISAGREEMENT NOTE Annexure A10 A TRUE COPY OF THE ORDER NO.10/2022 DT:7.2.2022 ISSUED FROM FILE NO.C- 14011/7/2006-AD.V(B) ON BEHALF OF THE PRESIDENT OF INDIA Annexure A2 TRUE COPY OF THE DEFENCE BRIEF AFTER THE INQUIRY AND SUBMITTED TO THE INQUIRY OFFICER Annexure A3 TRUE COPY OF THE CONTENTS OF THE SO CALLED ' NOTE' Annexure A4 TRUE COPY OF THE EARLIER 'NOTE' Annexure A6 TRUE COPY OF THE EXTRACT OF THE RELEVANT PORTION OF THE HAND BOOK Annexure A7 TRUE COPY OF THE STATEMENT OF SHRI.DINESH KUMAR SURATI, SUPERINTENDENT DT:10.8.2004 Annexure A8 TRUE COPY OF THE MEMO NO. C.14011/7/2006 AD.V. DT:17.6.2019 ISSUED BY THE 2ND RESPONDENT Annexure A9 TRUE COPY OF THE LETTER DT:28.8.2019 TO THE DISCIPLINARY AUTHORITY Annexure A11 TRUE COPY OF THE OM NO.425/04/2012-AVD- IV(A) DT:29.11.2012 ISSUED BY THE 5TH RESPONDENT Annexure A12 (a),(b),(c),(d), (e) and (f TRUE COPY OF THE OFFICE MEMORANDUMS HAVING THE SAME NUMBERS I.E.,.372/3/2007 AVD.III (VOL.10)DT:14.10.2013 ISSUED BY THE DOPT Annexure A13 TRUE COPY OF THE LETTER NO.F.NO.C- 14010/2/2010 -AD.V DT:18.1.2011 ISSUED BY THE 2ND RESPONDENT Annexure A14 TRUE COPY OF THE LETTER DT:10.9.2013 Annexure A15 TRUE COPY OF THE REMINDER DT:21.10.2013 Annexure A16 TRUE COPY OF THE LETTER DT:2.12.2013 Annexure A17 TRUE COPY OF THE LETTER DT: 1.4.2014
-6- O.P.(CAT) No. 30 of 2024 Annexure A18 TRUE
COPY
OF
THE
LETTER F.NO.E-II/25-5/PNB/2013 /42 DT:7.5.2014 ISSUED BY THE COMMISSIONER OF CENTRAL EXCISE MUMBAI II Annexure A19 TRUE COPY OF THE LETTER DT:4.4.2016 Annexure A20 TRUE COPY OF THE LETTER DT:27.7.2016 Annexure A21 TRUE COPY OF THE LETTER DT:2.4.2022 Annexure A22 TRUE COPY OF THE LETTER DT:9.4.2022 Annexure A23 TRUE COPY OF THE RTI APPLICATION DT:31.3.2022 Annexure A24 TRUE COPY OF THE REPLY DT:25.4.2022 FROM FILE NO.C-11015/14/2022-AD.V/3603 OF THE 2ND RESPONDENT ALONG WITH THE COPIES OF THE NOTE SHEETS Annexure A25 TRUE COPY OF THE APPLICANT HAS SUBMITTED A LETTER TO THE CPIO,CBIC ON 3.5.2022 Annexure A26 TRUE COPY OF THE APPEAL AGAINST RTI REPLY(ANNEXURE A24) WAS SUBMITTED ON 16.5.2022 Annexure A27 TRUE COPY OF THE LETTER .NO.110015/14/22 AD.V DT:17.5.2022 BY THE CPIO Annexure A28 TRUE COPY OF THE OM F.NO. 43020/14/2021 - ESTT.-A-III DT:8.11.2021 ISSUED BY THE DOPT Annexure R1 TRUE COPY OF THE CHRONOLOGY OF EVENTS OF THE SUBJECT CASE INCLUDING RELEVANT COMMUNICATION CONCERNING THE CASE Annexure R2 TRUE COPY OF THE DETAILS REGARDING THE PAYMENTS MADE TO SHRI P.N BALAKRISHNAN, AC(RETD), AS RECEIVED FROM THE CAO, CGST CX, MUMBAI, CENTRAL, VIDE LETTER F NO. E- 11/25 41/2022 DATED 24.08.2022 Annexure R3 TRUE COPY OF LETTER DATED 31.10.2022 OF THE JOINT COMMISSIONER(P&V), CGST CENTRAL EXCISE, MUMBAI CENTRAL, SPECIFYING THAT THE APPLICANT HAS BEEN PAID RS. 5,72,793/- TOWARDS LEAVE ENCASHMENT OF 285 DAYS EL AND 15 DAYS OF HPL AND THE SAME HAS BEEN CREDITED TO THE BENIFICIARY'S ACCOUNT ON 28.07.2022 Annexure A TRUE COPY OF THE USPC'S ADVICE LETTER DATED 30.05.2019 Annexure B TRUE COPY OF THE MINISTRY OF FINANCE'S
-7- O.P.(CAT) No. 30 of 2024 LETTER
C-14011/07/2006-AD.V
DATED 12.10.2018 Annexure A29 TRUE COPY OF THE BOOK REFERENCE FOR VIGILANCE
OFFICERS
PUBLISHED
BYTHE DIRECTOR GENERAL VIGILANCE OF CBIC IN PARA 3.8(A) Annexure A30 TRUE COPY OF LETTER NO. C-14010/2/2010- AD.V DATED 18.11.2011 ISSUED BY THE 2ND RESPONDENT Annexure RA 1 A TRUE COPY OF THE ORDER DT:3.7.2023 IN OA NO.276/22 Annexure RA2 TRUE COPY OF THE OFFICE ORDER NO.138/2009 DATED 30.06.2009 ISSUED BY THE 2ND RESPONDENT Annexure RA3 TRUE COPY OF THE ORDER DATED 08/05/2023 IN OA NO. 181/2022 Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION NO.276/2022 Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF RESPONDENTS 1 TO 5 Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT/COUNTER AFFIDAVIT WAS FILED ON BEHALF OF THE 6TH RESPONDENT Exhibit P4 A TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT Exhibit P5 A TRUE COPY OF THE ORDER DT:3.7.2023 IN OA NO.276/22 Exhibit P6 A TRUE COPY OF THE REVIEW APPLICATION NO.23/2023 IN OA NO.276/22 DATED 14/07/2023 Exhibit P7 A TRUE COPY OF THE ORDER DT:26.7.2023 IN RA NO.23/2023 Exhibit P8 A TRUE COPY OF THE ORDER NO.74/23 DT:27.12.2023 Exhibit P9 A TRUE COPY OF THE SANCTION ORDER NO.02/2023 DT:27.12.2023 Exhibit P10 A TRUE COPY OF THE CHARGE MEMO NO.38/2023 DT:27.12.2023