Union Of INDIA vs. A.R.Asok Kumar
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P. THUR AY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942 OP (CAT).No.7 OF 2019 AGAINST THE ORDER IN OA 841/2017 DATED 14-09-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONER/RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS(FORMERLY KNOWN AS CENTRAL BOARD OF EXCISE CUSTOMS), 613, 6TH FLOOR, HUDCO VISHALA BUILDING, BHIKHAJI CAMA PLACE, NEW DELHI-110066. 2 THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS (FORMERLY KNOWN AS CENTRAL BOARD OF EXCISE CUSTOMS), 613, 6TH FLOOR, HUDCO VISHALA BUILDING, BHIKHAJI CAMA PLACE, NEW DELHI-110066. 3 THE COMMISSIONER OF CENTRAL GST & CENTRAL EXCISE COMMISSIONERATE HEDQUARTERS, ICE BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695001. BY ADV. SRI.T.V.VINU, CGC RESPONDENT/APPLICANT: A.R.ASOK KUMAR, S/O.LATE K.APPUKUTTAN, ASSISTANT COMMISSIONER(RETIRED), OFFICE OF THE COMMISSIONER OF CENTRAL GST & CENTRAL EXCISE (FORMERLY KNOWN AS CENTRAL EXCISE, CUSTOMS SERVICE TAX), COMMISSIONERATE HEDQUARTERS, ICE BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695001, RESIDING AT SRUTHY, K.P.4/857, VAZHAYILA, KARAKULAM.P.O., THIRUVANANTHAPURAM-695564. R1 BY ADV. SRI.SHAFIK M.A. THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 14-09-2020, THE COURT ON 24-09-2020 DELIVERED THE FOLLOWING:
OP (CAT) No.7/2019 -2- J U D G M E N T Dated this the 24th day of September, 2020 Gopinath, J: This OP (CAT) has been filed challenging the order dated 14-09-2018 in OA No.841/2017. The petitioners are the respondents in that original application. The 1st respondent herein filed that original application seeking to quash a memo of charges issued to him on 21-11-2016 while he was working as Assistant Commissioner, Air Customs, International Airport at Thiruvananthapuram. For the sake of clarity, the parties are referred to, hereinafter, as they appear before the Tribunal and the documents referred to will be as they are marked before the Tribunal.
The brief facts are that on 25/26-03-2016 there was a surprise check conducted by the Central Bureau of Investigation at Thiruvananthapuram Airport. The surprise inspection was on account of the alleged demand and acceptance of bribe by one Sri. Vargheese who was then working as Superintendent of Air Customs at Thiruvananthapuram. Following the surprise check the CBI sent a report/ note dated 18-04-2016 to the Chief Vigilance Officer of the Central Board of Indirect Taxes in which
OP (CAT) No.7/2019 -3- it was stated that the applicant who was the Supervising Officer at the Airport on 26-03-2016 was found in an inebriated state at the time of the surprise check. A memo of charges (Annexure-A3) was issued after necessary approvals/consents/reports etc, on 21-11-2016, 9 days before the applicant was to set to retire on 30-11-2016. After receiving the explanation of the applicant and finding the same to be unsatisfactory an enquiry officer was appointed to enquire into the charges against the applicant. The charges framed against the applicant as is evident from Annexure-A3 were the following:- “Article I That the said Shri. A.R. Asok Kumar, while functioning as Assistant Commissioner, Air Customs at International Airport, Thiruvananthapuram was found in an intoxicated state on 26-03- 2016 during the joint surprise check conducted by the CBI. Article II That during the aforesaid period and while functioning in the aforesaid office the said Shri. Asok Kumar, being in an inebriated state was not in a position to supervise his duty or participate in the supervise check proceedings and thereby, the said officer failed to maintain devotion to duty and acted in a manner unbecoming of a Government Servant.” By the above said acts of commission and omission, Shri. A.R. Asok Kumar, Assistant Commissioner, has contravened the provisions of Rule 22 and Rule 3 (1) (ii) and 3 (1) (iii) of the Civil Service (Conduct Rules), 1964 and has rendered himself liable
OP (CAT) No.7/2019 -4- for penal action under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. On completion of the enquiry, the enquiry officer submitted a report finding that both charges are not proved. The disciplinary authority remitted the matter for further enquiry finding that all the witnesses were not examined by the enquiry officer. On 14- 09-2018 the Tribunal considered the matter in extenso. It was found that the charge memo was issued just 9 days prior to the date of retirement of the applicant and that no expeditious steps were taken by the Department to complete the enquiry. The Tribunal also considered the fact that the applicant had almost 36 years of unblemished service (which fact is not disputed before us) and also that the Department did not complete the disciplinary enquiry within the time granted by the Tribunal in its interim order dated 26-02-2018. The Tribunal therefore declared that all further proceedings on the basis of Annexure- A3 memo of charges are null and void. Before we consider the contentions raised by either side we must notice that though this OP (CAT) was admitted, no interim orders were granted. But the fact remains that notwithstanding the order of the Tribunal, the enquiry proceeded following remit by the disciplinary authority. In the affidavit filed in support of I.A. Nos.1 & 2/2020 it is stated
OP (CAT) No.7/2019 -5- that the report of the enquiry officer following the remit also concluded that the charges against the applicant have not been proved. It is also stated that further proceedings on the basis of the enquiry report will be taken in terms of the provisions of the Central Civil Services (Classification, Control & Appeal) Rules. This court had passed an order on 10-03-2020 directing as follows:- "As per the directions in the interim order dated 13.02.2020, both the enquiry reports were placed before us. It has to be noticed that both the reports in fact exonerate the applicant from the misconduct alleged against him. We had noticed the contention of the applicant with respect to the remand made by the Disciplinary Authority at the first instance, basing such contention on Section 15(1) of the Central Civil Services (Classification Control and Appeal) Rules, 1965 [for brevity, 'the Rules of 1965']. The provision specifically mandates further proceedings to be carried out under Rule 14 of the Rules of 1965. Rule 14(21)(b) provides for further examination of any of the witness in the interest of justice and recall of the witness and examination, cross- examination and re-examination. In such circumstances only a witness already examined could be directed to be recalled and examined. This does not permit fresh witnesses to be examined by the Enquiry Officer, especially since at the first enquiry, the Presenting Officer is deemed to have given up such examination of witnesses, who were cited at the time of commencement of the enquiry proceedings.
OP (CAT) No.7/2019 -6-
We reiterate that both the enquiry reports exonerate the applicant. In such circumstances, we direct the Disciplinary Authority to take a call on the findings of the Enquiry Officer as to whether he agrees with it or not and place the same before us. We make it clear that whatever the order, the directions in the interim order dated 13.02.2020, with respect to disbursal of DCRG and other benefits shall be carried out." Thereafter a further order was passed on 03-08-2020 directing as follows: “The learned Central Government Counsel submits that now the disciplinary authority has issued a Disagreement Note with a covering letter, directing the delinquent employee to submit his representation. In such circumstances, we are of the opinion that the Original Petition itself would have to be heard. We, hence, direct that the order to disburse the Death-cum-Retirement Gratuity need not at present be enforced. The matter shall not be treated as part-heard. Registry to place the matter for hearing, according to roster. It is in this fact scenario that the matter is now before us.
Sri. T.V. Vinu, learned counsel appearing for the Union of India and its officers would contend that the charges leveled against the applicant are serious in nature and therefore that the initiation and continuation of proceedings under the CCS (CC&A) Rules for imposition of a major penalty is in order. He
OP (CAT) No.7/2019 -7- would refer to the order of the Tribunal and contend that no legal infirmity or defect has been found by the Tribunal in order to declare that all further proceedings following Annexure-A3 memo of charges are to be treated as null and void. He would also point out that the Tribunal exceeded its juri iction in declaring proceedings initiated on a memo of charges to be null and void. He would conclude by arguing that the Department must be permitted to complete the proceedings following the receipt of the second enquiry report (following the remit by the disciplinary authority) in a manner prescribed by the CCS (CC&A) Rules.
Sri. M.A. Shafik, learned counsel appearing for the applicant/1st respondent would contend that the proceedings against the applicant are clearly misconceived and that even if the entire facts alleged are true the same should not have led to the issuance of a memo of charges for imposition of a major penalty especially considering the fact that the applicant has about 36 years of unblemished service. He would also refer to the fact that no independent medical examination was carried out to determine whether the applicant was under the influence of alcohol and that the entire proceedings was initiated solely on
OP (CAT) No.7/2019 -8- a breath analyzer test (Alcometer test) and would submit that it is impossible to determine accurately as to whether the applicant was under the influence of alcohol without further medical examination.
We have considered the contentions raised by both sides. As rightly pointed out by the learned counsel appearing for the Department, the Tribunal has not found any legal lacuna or procedural infirmity in the proceedings initiated by the Department. Normally a Court or Tribunal will not interfere with an enquiry initiated under the applicable Rules and will allow such proceedings to be concluded in the manner contemplated by the law. However in the entirety of the facts and circumstances of the case and considering the fact that in the first round of enquiry as well as in the second round of enquiry, the fact finding authority (the enquiry officer) has found that the charges leveled against the applicant have not been proved, we feel that it would be a travesty of justice to allow the proceedings to continue after the retirement of the applicant. The learned counsel for the applicant would point out that the second round of proceedings before the enquiry officer was actually without any notice to him and that he had not
OP (CAT) No.7/2019 -9- participated in such proceedings. In the first round of enquiry the disciplinary authority had remitted the matter for further enquiry on the premise that all witnesses had not been examined by the enquiry officer. One should therefore presume that available witnesses were examined in the second round of enquiry before the enquiry officer (which itself was found to be against the Rules, by this Court in the interim order dated 10-03- 2020). Be that as it may, even after such enquiry the charges against the applicant have been found to be not proved as is evident from the averments in the affidavit dated 02-07-2020 filed in support of I.A. No.1 & 2/2020 in the above original petition. We are of the opinion that in strict legal terms there may be merit in the contention of the Department that further proceedings are required to be completed in terms of the provisions contained in the Rules and in the manner indicated in the affidavit dated 02-07-2020, referred to above. We are also of the view that the Tribunal did not find any legal lacuna in the proceedings initiated by the Department, except that the proceedings were not completed within a reasonable time, to hold that the enquiry proceedings in furtherance of Annexure-A3 are null and void. The Tribunal could have, no doubt, after perusing the enquiry report etc., reached the conclusion that this
OP (CAT) No.7/2019 -10- was a case of no evidence. However the Tribunal did not deem it necessary to await the completion of proceedings before declaring all further proceedings initiated on the basis of Annexure-A2 to be null and void. Be that as it may, considering the fact that the applicant had a long unblemished career and considering the fact that the charge memo in question was issued just 9 days prior to his retirement and further considering the fact that in the absence of independent medical evidence regarding the content of alcohol and merely on the basis of the breath analyser test it may not be possible for the Department to reach any definite conclusion regarding the question as to whether the applicant was under the influence of alcohol, we feel that we should not exercise our juri iction to set aside the order of the Tribunal. We therefore refrain from exercising our discretionary juri iction under Article 227 of the Constitution of India to interfere with the order of the Tribunal. We find, for reasons other than those found by the Tribunal, that the proceedings should not be continued and concluded against the applicant / 1st respondent. OP (CAT) No.7/2019 will stand dismissed making it clear that the findings of the Tribunal shall not be treated as a
OP (CAT) No.7/2019 -11- precedent. They shall be treated as having been rendered in the peculiar facts and circumstances of this case. We also direct that if any retirement benefits of the applicant /1st respondent have been withheld, such benefits shall be released forthwith. We make it clear that the applicant /1st respondent shall not be entitled to claim any interest for the delay in the payment of retirement benefits. A.M.SHAFFIQUE JUDGE GOPINATH P. JUDGE AMG
OP (CAT) No.7/2019 -12- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ORIGINAL APPLICATION IN O.A.NO.180/00841/2017, DATED 04/10/2017 FILED BY THE RESPONDENT. EXHIBIT P2OF THE REPLY STATEMENT IN O.A.NO.180/00841/2017, DATED 12/01/2018. ANNEXURE-A3OF CHARGE MEMO No.43/2016 ISSUED UNDER F.No.C.14011/67/2016-Ad.V DATED 21-11-2016 ISSUED BY THE 2ND RESPONDENT. ANNEXURE-A1OF THE RELIEF REPORT DATED 30-11-2016 OF THE APPLICANT. ANNEXURE-A2OF THE SURPRISE CHECK PROCEEDINGS PREPARED BY THE CBI ON 26-03-2016. ANNEXURE-A4OF THE REPLY DATED 12-12-2016 TO THE CHARGE MEMO OF THE APPLICANT. ANNEXURE-A5OF THE LETTER C.No.II/25/06/2016 Accts/14731 DATED 15-12-2016 ISSUED BY THE CHEIEF ACCOUNTS OFFICER. ANNEXURE-A6OF THE REPRESENTATION DATED 20-03-2017 SUBMITTED TO THE 2ND RESPONDENT. ANNEXURE-A7OF THE REPRESENTATION DATED 20-07-2017 SUBMITTED TO THE 2ND RESPONDENT. ANNEXURE-A8OF THE PAY SLIP OF THE APPLICANT FOR THE MONTH OF NOVEMBER 2016. ANNEXURE-A9OF THE SELF CONTAINED NOTE DATED 22-04- 2016 OF THE SUPERINTENDENT OF POLICE & HOB, CBI/ACB, COCHIN. ANNEXURE-A10OF THE ENQUIRY REPORT DATED 12-08-2016 OF SHRI. S. SURESH SUPERINTENDENT (LEGAL) & ENQUIRY OFFICER. ANNEXURE-A11OF THE LETTER C.No.II/10A/6/2016- Vig.Cx.Tvm/362 DATED 18-09-2017 OF THE ASSISTANT COMMISSIONER, THIRUVANANTHAPURAM. EXHIBIT P3OF THE ORDER (INTERIM ORDER) IN O.A.NO.180/00841/2017, DATED 25/01/2018
OP (CAT) No.7/2019 -13- EXHIBIT P4OF THE M.A.NO.180/1001/2018, DATED 09/07/2018 IN O.A.NO.180/00841/2017 FILED BY THE PETITIONERS. EXHIBIT P5OF THE M.A.NO.180/1002/2018, DATED 11/07/2018 IN O.A.NO.180/00841/2017, FILED BY THE PETITIONERS. EXHIBIT P6OF THE M.A.NO.180/976/2018 IN O.A.NO.180/00841/2017, DATED 14/08/2018 FILED BY THE APPLICANT. ANNEXURE-MA-1OF THE INERIM ORDER DATED 25-01-2018 OF CAT, ERNAKULAM BENCH IN OA 841/2017. ANNEXURE-MA-2OF THE IO'S LETTER DATED 06-03-2018 DIRECTING THE APPLICANT TO SUBMIT WRITTEN BRIEF. ANNEXURE-MA-3OF THE WRITTEN BRIEF DATED 17-03-2018 SUBMITTED BY THE APPLICANT TO THE IO. ANNEXURE-MA-4OF THE EMAIL AND IO'S LETTER DATED 08- 03-2018 ANNEXURE-MA-5OF THE REPLY DATED 09-08-2018 SENT TO IO EXHIBIT P7OF THE ODER IN O.A.NO.180/00841/2017, DATED 14/09/2018 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P10OF THE MEMORANDUM DATED 30/7/2020 ISSUED BY THE 2ND RESPONDENT RESPONDENT'S/S EXHIBITS: EXHIBIT R1 PHOTOSTAT COPY OF THE LETTER DATED 8/3/2018 FROM THE IA. EXHIBIT R2 PHOTOSTAT COPY OF THE EMAIL COMMUNICATION DATED 8/8/2018 FROM CCO-VIGILANCE, TVM ZONE EXHIBIT R3 PHOTOSTAT COPY OF THE LETTER C.NO.II/39/32/2017- CC(KZ) 1 DATED 3/8/2018 ISSUED BY THE ADDL. COMMISSIONER AND IO EXHIBIT R4 PHOTOSTAT COPY OF THE LETTER DATED 9/8/2018 SENT BY THE RESPONDENT
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.