High Court
Case Details
WP(C) 1651/2010 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P.K.MUSAHARY The genesis of this writ petition, made under Article 226 of the Constitution of India, lies in the Memorandum, dated 20.9.2004, issued by the respondent No. 4, namely, the Disciplinary Authority, directing the petitioner herein, who was at the relevant point of time, serving as Inspector, Central Excise and Customs, G ovt. of India, to show cause against the charge, which had been levelled against the petitioner by initiating disciplinary proceeding in terms of the Central Ci vil Services(Conduct) Rules, 1964. The Article of Charge, being relevant, is rep roduced below :- (cid:28)Shri Chandan Surjit Singh, while posted and functioning as Inspector of Customs (Disposal) and Custodian of Godown and Sales Counter at Guwahati Customs Divisio n, Nilomani Phukan Path, Christian Basti, Guwahati committed gross misconduct in as much as he failed to maintain properly account of the seized goods received by him at Godown and at Sales Counter and during a joint surprise check conducte d in the Godown and Sales Counter of Guwahati Customs Divisional Office on 23rd and 24th Dec’ 2003 by the officials of C.B.I., ACB, Guwahati and the officials o f Guwahati Customs Division, shortage worth Rs. 55140/ - was detected. He also allowed the goods received in Godown & Sales Counter to be used by himself and others without depositing the cost. Shri Chandan Surjit Singh, by his aforesaid acts, failed to maintain abs olute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby contravened Rule 3(1) (i), (ii) and (iii) of CCS(Conduct) R ules, 1964. (cid:29) The petitioner herein, submitted his written statement, whereby 2. he denied the allegations, which were made against him, by contending that he ha d made entries in respect of all seized goods received by him as Godown-in-Charg e, there was no case where he had received the goods from the Seizing Officer/Un it, but not shown in the Godown Register/Records and, hence, when he had meticul ously recorded the receipt of the goods, how the charge of not maintaining prope r account could be levelled against him and that as it was a matter of simple pr ocedure that once he had shown the receipt, he had to account for the goods only after sale was completed and, in the alleged case, no sale was completed and, h ence, the alleged charge of not maintaining proper account was premature and des erved to be dropped, for there were two sides of an account --Receipt and Sale. In the instant case, according to the petitioner, (cid:28)Receipt (cid:29) have been shown and as no (cid:28)Sale (cid:29) was done, the question of filling up of the other side of the accou nt does not arise and as transactions were not complete, question of not maintai ning account did not arise as regards shortage of goods worth Rs. 55,140/-. T he petitioner, in his written statement also contended that, it had not been tak en note of that since his was a case, wherein goods could not be made available , for physical verification, to the team, which had visited the godown, whose in -Charge he (petitioner) was and not that the goods could not be accounted for. I n this regard, the petitioner also contended that the goods were duly noted and were explained to the joint inspection team, but the team chose not to examine t he veracity of the note and explanation offered, but decided to show the goods a s shortage, which was incorrect.
Legal Reasoning
13. Strictly speaking, therefore, we agree with the finding of the E nquiry Officer that the petitioner’s conduct suffered from serious lapses. It is , however, not only difficult but also impossible to agree with the finding of t he Enquiry Officer that the petitioner’s conduct suffered from moral turpitude. In order to treat an employee’s conduct as involving moral turpi 14. tude, there has to be some element of mens rea. In the case at hand, there was, admittedly, no misappropriation of goods, or of the value thereof, by the petiti oner. The petitioner sold the goods, which the petitioner was entitled to do. Ho wever, instead of making sale on cash payment, the petitioner had been making sa le on deferred payment. While there was, undoubtedly, procedural lapse on the pa rt of the petitioner, his conduct cannot be regarded as a conduct involving mora l turpitude, particularly, when mens rea could not be proved and no loss to the exchequer was caused. 15. Even the Disciplinary Authority, we notice, did not record its d isagreement with the findings of the Enquiry Officer meaning thereby that even t he Disciplinary Authority agreed that the petitioner’s act was not mala fide and /or his conduct did not involve mens rea. 16. In the circumstances aforesaid, while the Disciplinary Authority was correct in agreeing with the finding of the Enquiry Officer that the petiti oner’s conduct suffered from procedural lapse, the agreement by the Disciplinary Authority, with the finding of the Enquiry Officer, that the petitioner’s condu ct suffered from moral turpitude, is, in the face of the materials on record and the law relevant therein, wholly incorrect. In upholding the finding in its ent irety, the appellate authority, too, has wrongly upheld that part of the finding of the Enquiry Officer, which stated that the petitioner’s conduct suffered fro m moral turpitude. We have carefully examined the order, dated 12.5.2008, whereby t 17. he learned Tribunal has dismissed the OA and we notice that the learned Tribunal ’s discussion, nowhere, shows that the petitioner had acted with criminal intent or there were mens rea or that there was misappropriation of the confiscated go ods and/or value thereof. The fact that the petitioner’s conduct, in the face of the materials on record, did not suffer from moral turpitude, appears to have e scaped the attention of the learned Tribunal. We are thus, constrained to interf ere with the order, dated 20.01.2010, which stands impugned in the present Writ Petition. Because of what have been discussed and pointed out above, we al 18. low this writ petition by setting aside the impugned order, dated 20.01.2010. We also set aside and quash the orders, dated 22.11.2007, passed by the Disciplina ry Authority and the Appellate Authority, dated 9th of May, 2008, and we remand the matter to the respondent No. 4, who is the disciplinary authority in the pre sent case, for the purpose of taking a decision afresh on the penalty to be impo sed on the petitioner keeping in view that the petitioner’s conduct did not suff er from moral turpitude, though his conduct did suffer from procedural lapses.
Arguments
3. Not satisfied with the denial of the allegations made against hi m and the explanation, which the petitioner had offered, the disciplinary author ity held an enquiry and the finding of the Enquiry Officer was that the petition er had committed procedural lapses and moral turpitude. The finding of the enqui ry officer reads as under :- (cid:28)I find that Shri Chandan Surjit Singh has committed procedural lapses and moral turpitude by removing the confiscated goods which were not found physically by the Joint Inspection Team and disposing the goods on deferred payment even thoug h with the knowledge and concurrence of his immediate superior officers. However , I conclude that there is no revenue loss to the department in any manner. (cid:29) The Disciplinary Authority, agreeing with the finding of the Enq 4. uiry Officer, imposed punishment of withholding of petitioner’s increment and pa ssed an order, on 22.11.2007, reducing his basic pay to a lower stage for a peri od of one year with cumulative effect. The order imposing penalty reads as under :- (cid:28)In view of my findings above, I hereby order for reduction in the pay of Shri C handan Surjit Singh Inspector to a lower stage in the time scale of that he is a t presently drawing. The said Shri Chandan Surjit Singh Inspector is at present drawing basic pay of Rs. 7700/- in the scale of pay Rs. 6500 -200-10500 and on b ehalf of hereby order that his pay be fixed to a lower stage of basic pay of Rs. 7500 for a period of 1(one) year with cumulative effect. In other word the said Shri Chandan Surjit Singh Inspector will not earn increment of pay during the p eriod of 1(one) of such reduction and on the expiry of 1(one) year period, the r eduction will have the effect of postponing of future increment of his pay under Rule 11 (v) of the CCS (CCA) Rules 1965. (cid:29) The petitioner, though, preferred an appeal against the finding 5. and also the penalty imposed, the appellate authority dismissed the appeal by it s order dated 12.5.2008. Aggrieved by the penalty imposed, the petitioner made Original A 6. pplication in the Central Administrative Tribunal, Guwahati Bench, which gave ri se to Original Application No. 208/2008 (in short, ’OA’). The learned Tribunal took the view that the findings of the enqu 7. iry officer as well as the disciplinary authority were based on legal evidence a nd the penalty imposed was not disproportionate to the proof of charges. With th e conclusion so reached, the O.A. had been dismissed. 8. With the help of this writ application, made under Art 226, the petitioner has, now, put to challenge the order, dated 20.1.2010, passed in OA N o. 208 of 2008, whereby the learned Tribunal has upheld the penalty imposed and dismissed the OA. 9. We have heard Mr. K.N. Choudhury, learned Standing Counsel, appe aring for the petitioner, and Mr. R. Dubey, learned counsel for the respondents. 10. While considering the present writ petition, what needs to be ke pt in view is that the finding of the enquiry officer was that the petitioner’s case suffered from procedural lapses and moral turpitude. While considering the conclusion, which had been so reached by the Enquiry Officer, it may be noted th at the presenting officer, while presenting the case of the disciplinary proceed ing, submitted, inter alia, thus :- (cid:28)In course of examination, the then Superintendent in-Charge of Disposal Unit, Shri D.R. Saha has also affirmed that the practice of giving goods withou t payment and realizing the amount later on from the Department officers was ver y much within this knowledge. He had also taken a portion of the goods which wer e shown as shortage on the date of Surprise Check. On 26.12.2003, he had made th e payment and Cash Memos were issued by Shri Ch. Durjit Singh, Inspector. The sa me aspect was affirmed by many other Department officers S/ Shri Sribas Dhar, Su pdt. P.K. Mahanta, Insp., Devasish Chakravarty, Insp. And Khagen Bora, Supdt. in course of their examination/cross examination on 20.6.2007. Under the above circumstances, the matter may be decided by keeping in v iew that Shri Chandam Surjit Singh, Inspector was giving goods to the Department al officers without taking money immediately but realizing later on with full kn owledge of his immediate controlling officer though without incurring loss to th e exchequer. Moreover, there has been neither any shortage/excess nor any non-ac countal of goods in Godown and Sales Counter, Guwahati. (cid:29) (Emphasis is added) 11. From a cautious and careful reading of the above submissions mad e by none other than the presenting officer himself that practice of giving the goods without payment and realizing the sale proceeds, later on, from the depart mental officers was in vogue within the knowledge of officers superior to the pe titioner and, for the portion of the goods which had been shown as shortage, pay ment had been made on 26.12.2008. Further submission of the presenting officer w as that the petitioner had been giving goods to the departmental officers withou t receiving payment and realizing the money, later on, within the knowledge of h is immediate controlling officer and without causing any loss to the exchequer. Categorically stated the presenting officer, in his submissions, made at the enq uiry, that there had neither been any shortage/excess of goods nor any omission to account for the goods in the godown and the sales counter at Guwahati. 12. From the submissions made by the presenting officer himself, wha t can be safely gathered is that the petitioner had been making sale of the seiz ed goods, which he was, otherwise also, entitled to, but the sale was on the bas is of the deferred payment.
Decision
19. ition shall stand disposed of. In terms of the above observations and directions, this writ pet 20. No order as to costs.