The arm of the Court is long enough to reach injustice wherever it is found - AN Additional Commissioner's Travails against his own Department - Charge Memo Issued after 12 years quashed on ground of delay

By Vijay Kumar

THIS is the story of the travails of an Additional Commissioner against his own department. The perseverance with which the revenue Department pursued this case against its own officer is mind boggling.

Read on:

A Charge Memo was issued to an Additional Commissioner (Let us call him ADC) of Customs and Central Excise on 5.3.2014. The gist of the charges was that while posted as the Deputy Commissioner of Customs, Inland Container Depot, Ballabhgarh, Haryana during the period April 2002 to February 2003 he failed, both in his capacity as a Supervising Officer and as an Assessing/Examining Officer, to maintain integrity and devotion to duty and caused loss to the Government Exchequer by not only allowing certain firms to avail undue Duty Entitlement Pass Book (DEPB) but also in facilitating the final processing of shipping bills and the consignments to be exported. Further, he had also allowed customs clearance of sub-standard export consignments of a firm for pecuniary gain, in that, he used to receive monetary benefits in lieu thereof.

Our ADC filed an application before the Central Administrative Tribunal, Guwahati Bench against the charge memo. The basic grounds of challenge taken is that the memo of charges had been issued after an inordinate and unexplained delay of more than 12 (twelve) years, having regard to the period i.e. April 2002 to February 2003 when irregularities were alleged to have been committed.

Further, on the same set of charges a detailed enquiry had been conducted by the Central Bureau of Investigation (CBI) and its Closure Report dated 28.12.2007 had since been accepted by the Court of Special Judge, CBI, Ambala.

Also, on the same set of allegations/charges, the Directorate of Revenue Intelligence (DRI), had also initiated proceedings by way of a Show Cause Notice dated 13.9.2004 alleging violation of Section 114 of the Customs Act, 1962, which culminated in the adjudication order of the then Commissioner of Central Excise exonerating the ADC.

Further ground of challenge was that the respondent authorities had deliberately and with malafide intention issued the memo of charges at the time when he was due for promotion to the grade of Commissioner. According to him, the said proceeding had been initiated only to deny promotion benefit on the pretext of pendency of a disciplinary proceeding where the cause of action related to a period which was 12 (twelve) years old.

The Tribunal on an elaborate analysis of the case, allowed the Original Application by judgment dated 24.4.2015. The Tribunal held that there was not only an inordinate and unexplained delay of more than 12 years in the initiation of the disciplinary proceedings, but Charge Memo had also been issued on the same set of charges already dealt with by the DRI.

The Government is aggrieved and took the matter in appeal before the Gauhati High Court. Before the High Court, Union of India canvassed the following grounds of challenge:

(i) The acceptance of the Final/Closure Report of the CBI by the Special Judge, CBI, Ambala does not tantamount to acquittal on merit and, therefore, the same had no bearing on the departmental proceedings.

(ii) The order imposing penalty, so passed in the de novo proceedings by Commissioner of Central Excise (Adjudication), had been quashed by the Delhi High Court only on the writ petition filed by one Shri S.L. Bansal and not by the ADC and said Shri Bansal had since taken voluntary retirement.

(iii) The setting aside of the orders by the Delhi High Court operates in restoring the matter to the stage prior to the passing of the orders by the Commissioner and, therefore, the proceedings under the Customs Act cannot be held to have attained finality.

(iv) The delay caused in initiating the departmental proceedings was due to various complexities and no prejudice had been caused to the charged officer.

The High Court was not impressed and noted,

It is true that a charge memo is neither a final order nor operates as a disciplinary punishment. The conclusion of a disciplinary proceeding, if adverse, obviously can be tested in a court of law but to say that challenge to the disciplinary proceedings is not maintainable on grounds of being premature is misconceived.

The arm of the Court is long enough to reach injustice wherever it is found.

The foremost point for decision is whether the delay of more than twelve years in initiating the proceedings, that remained unexplained, strikes at the root of the charge memo and the proceedings.

The second consideration would be whether the departmental proceedings be allowed to stand when on the same set of charges, evidence, witnesses and circumstances the respondent ADC was exonerated by statutory authorities.

In the instant case, on the alleged irregularities against the ADC pertaining to the period April 2002 to February 2003, the memorandum of charge was issued on 5.3.2014/7.3.2014 i.e. at a distance of twelve years. The only explanation rendered by the UOI is that since initiation of a departmental proceeding is a very serious exercise and involves threadbare examination of the materials available, as such, care has to be taken to ensure that an innocent is not subjected to harassment nor an errant officer escapes punishment because of hasty and scantily deliberated decision in a given case. This explanation to justify the delay is weak, uninspiring and made as a matter of course. No cogent explanation is set forth to give the least benefit of credence to the said explanation.

Not to be left without mention, proceedings had taken place in the interregnum at the instance of the CBI and the DRI which concluded in favour of the ADC.

Most pertinently, it is not the case of the Government that the department was not aware of the alleged irregularities until twelve years had passed.

The irregularities which were the subject matter of the disciplinary proceedings initiated vide Charge Memo dated 5.3.2014/7.3.2014 is stated to have taken place in 2002-2003. Apparently, the department cannot feign ignorance and say that it came to learn of it only in the year 2014. This is belied by the very fact that the department was alive to the investigations made by CBI and the proceedings before the DRI. It is not comprehended as to why it had taken more than 12 years to initiate the disciplinary proceedings.

The delay itself goes to show that the department did not consider the matter as of any serious import affecting the discipline of the department.

The plea of inordinate and unexplained delay as well as prejudice caused to the ADC had been categorically raised which, however, did not receive any satisfactory explanation from the Government. Neither any cogent explanation has been made to the satisfaction of the Court.

The High Court held that the Union of India have utterly failed to provide sufficient and reasonable explanation for the delay in initiating the disciplinary proceedings against the ADC.

The High Court found the writ petition devoid of legal merits. The judgment of the Tribunal cannot be faulted on any legally tenable grounds. The writ petition being without merit on the first point itself, no further elaboration was made to discuss and adjudicate on the second point.

The Writ Petition by the revenue was dismissed. Will the benign Board concede justice or go the Supreme Court to prove its point?

Please see 2016-TIOL-1051-HC-GUW-SERVICE