Charge-sheet Against CE Commissioner - CAT Declines to interfere
IT all started with two pseudonymous complaints sent under the names of two Superintendents of Central Excise regarding alleged acts of corruption of the Commissioner. The learned Commissioner of Central Excise, Customs and Service Tax joined the IRS in 1981 and was promoted as Commissioner in 2002. A naka was set up under the orders of the Commissioner on a company on 29.12.2011 which was removed on 09.01.2012.
A Charge-sheet was issued to the Commissioner on 10.09.2013 alleging that:
1. He without disclosing and discussing any intelligence imposed a Naka upon the Company in order to 'put pressure on the assessee to meet his illegal demands'. This action of the Commissioner is alleged to be without any legal authority and in supersession of the process prescribed for the same by the Board.
2. on 09.01.2012 he abruptly ordered for lifting of the nakabandi without prior consultation with the AC and ADC, and that to justify his action, he got a note prepared dated 09.01.2012, which would convey the impression that nothing adverse had been found and hence nakabandi had to be lifted without recording any proper reasons in the file.
3. there were glaring inconsistencies in the statement of the applicant before the Directorate of Vigilance, inasmuch as he initially stated that the decision to impose nakabandi and to lift the same had been taken by him in consultation with the subordinate officers following due discussions, but when confronted with the facts, he altered his stand in his later statement dated 21.02.2013.
The Commissioner's complaint is that the Department investigated anonymous complaint without following the due process and contrary to the circulars on the subject. Three of his juniors have been promoted.
The Department held that:
1. though the complaints were anonymous, there were certain verifiable facts.
2. The applicant had been declared unfit by the DPC for reasons other than the pending vigilance investigation or departmental proceedings contemplated/initiated against him.
The Commissioner is before the CAT for quashing the charge-sheet and the CAT in an order last Monday dismissed his application.
The Tribunal observed,
The submissions of the applicant in this OA mostly pertain to matter of facts or documents. Such issues at the first instance are to be thrashed out in the departmental proceedings where evidence is to be led, witnesses are to be produced, examined and cross-examined. We are confident that this Tribunal should not usurp the power of the departmental authorities. We at this stage cannot go into the merits of the case as this would amount to creating prejudice in relation to the disciplinary enquiry which is yet to be held.
There is nothing in the file to suggest any procedural irregularity/mala fide/violation of statutory provisions to vitiate the proceedings or any element of pre-determination or bias against the applicant. This Tribunal at this stage of the proceedings is neither competent nor does it find it desirable to enter the labyrinth of the articles of charges and the evidence for and against it. It is for the enquiry officer to analyse the evidence, of the witnesses examined and assess such documentary and oral evidence as has been submitted and to give his findings. We, by no account, propose to usurp this prerogative of the enquiry officer nor are we permitted to do so by numerous pronouncements of the Hon'ble Supreme Court, Hon'ble High Courts and of the Central Administrative Tribunal.
However the Tribunal observed that the applicant is a senior officer and continuous departmental enquiry for long is likely to hamper his career and, therefore directed the Department to conclude the enquiry within a period of three months and the final order thereon be passed thereafter within another three months subject to cooperation of the applicant. In the event the applicant does not cooperate, it would be open to the disciplinary authority to proceed ex-parte.
The Vigilance Directorate had noted in one of the files in this case:
Normally Commissioner is not a part of search/visit team and if an operation of such large level is carried out, the intelligence is recorded prior to action, either as AE-1 or as a file noting, which was not done in the present case. It has also not been taken on record as to who had gathered the intelligence and what transpired during discussion which necessitated a large scale operation under the leadership of Commissioner.