CORAMThe Honourable MR v. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.09.2007CORAMThe Honourable MR.JUSTICE ELIPE DHARMARAOandThe Honourable Mr.JUSTICE S.TAMILVANANWRIT PETITION NO.18439 OF 2007andM.P.NO.1 OF 20071. Union of India, Rep. by its Chairman Central Board of Excise & Customs, Ministry of Finance, Department of Revenue, New Delhi.2. The Chief Commissioner of Customs, Customs House, Chennai 600 001.3. The Commissioner of Customs, Customs House, Chennai 600 001... PetitionersVs.1. The Registrar, Central Administrative Tribunal, Chennai Branch Chennai - 104. 2. K. Manappa.. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorari calling for the recordsrelating to the order of the 1st respondent, the CentralAdministrative Tribunal, Chennai Bench in O.A.No.925 of 2005 dated29.01.2007 and quash the same.For Petitioners : Mr.M. Gopikrishnan, CGSC For Respondent-1 is : TribunalFor Respondent-2: Mr.R. Kannan- - - https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by ELIPE DHARMARAO, J.)Even though the matter was listed for considering thequestion of stay, on consent of both the counsel, the main writpetition itself is taken up for final disposal.2. The present writ petition is directed against the orderof the Tribunal dated 29.1.2007 in O.A.No.925 of 2005 wherein theapplicant has challenged the order rejecting his representation dated5.8.2003, in particular para 3 of such order.3. The facts are in brief are as follows :-The applicant was working as Examiner in Customs Department andon 11.9.1991 he was issued with charge memo stating that he gave awrong report on the bills relating to consignment of old and usedtyres resulting in loss of revenue to the Government fromunauthorised importation. The applicant submitted his explanationdated 16.9.1991 and after conducing enquiry, the enquiry officersubmitted his report on 26.11.1993 holding that there was no directevidence to show that there was collusion between the applicant andimporter and that there was no loss to the Government. Afterreceipt of such report, the Commissioner of Customs, namely, thethird respondent therein, imposed penalty of reduction of applicant'spay by two stages for a period of two years by order dated 24.1.1997,which was confirmed on appeal by the appellate authority. Againstsuch orders, the applicant preferred O.A.No.37 of 1998 before theTribunal. The Tribunal by its order dated 7.1.2000 set aside theimpugned order on the ground that the Commissioner of Customs failedto issue notice to the applicant when the latter differed with theI.O's report. Against such order of the Tribunal, the respondentstherein preferred W.P.No.12669 of 2000. A Division Bench of thisCourt by order dated 23.6.2003 modified the punishment and reducedthe penalty to that of stoppage of one increment without cumulativeeffect and observed that the punishment should not be considered asbar for considering the question of promotion. On the basis of theorder of the High Court, the the applicant made a representationdated 13.11.2003 to the Commissioner of Customs to promote him to thepost of Appraiser with effect from 1991 and to the post of AssistantCommissioner from 2002. The second respondent therein, namely, theChief Commissioner of Customs under the impugned order rejected therepresentation of the applicant. The appeal preferred against suchorder being failed, the applicant filed O.A.No.925 of 2005challenging the order of the Chief Commissioner of Customs. The applicant has reiterated the facts stated in the earlier https://hcservices.ecourts.gov.in/hcservices/ Original Application. The respondents have filed a reply statingthat the applicant became eligible for being considered to the postof Appraiser after putting in three years of service as Examiner. Itwas further stated that though he was to be considered for DPC heldon 1992-93, he could not be promoted due to non-vigilance clearance.It was further stated that three charge sheets between September 1991and July 1997 were laid against the applicant and since the award ofpunishment in the second case had started on 5.1.1998, themodification of punishment made by the High Court could not beimplemented. It was further stated that the applicant wascontinuously under punishment from 24.1.1997 to 4.1.2000 and hence hewas not considered for promotion during that period and he waseligible for promotion only from 5.1.2000. In the additional replyfiled by the respondents therein they had stated that the DPC of1992-1993 considered the case of the applicant for promotion and itsrecommendation was kept in a sealed cover.4. After hearing the counsel for both sides and after goingthrough the materials on record, the Tribunal quashed the impugnedorder and directed to promote the applicant notionally withretrospective effect based on the recommendations of the DPC held in1992-93 and such a promotion can have prospective effect in respectof all his retiral benefits as well as pension payments in future andfurther directed the respondents therein to issue orders within aperiod of six weeks from the date of receipt of a copy of the order.The Tribunal further awarded a cost of Rs.1,000/-. Aggrieved againstthe aforesaid order of the Tribunal, the official respondents in theOriginal Application have come forward with this writ petition.5. Learned counsel appearing for the petitioners hascontended that the earlier order passed by a Division Bench of thisCourt in W.P.No.12669 of 2003 should be read along with theDepartments Rules, which are not set aside, and the High Court hasnot specifically directed to give promotion to the applicant. He hasfurther contended that since the applicant/first respondentvoluntarily retired from service with effect from 1.8.2004, he wouldnot be entitled to the benefits of the promotion to the grade ofAssistant Commissioner since he has not performed the work of Asst.Commissioner. 6. Learned counsel appearing for the first respondent hassubmitted that when the High Court in its earlier order inW.P.No.12669 of 2000 has made it clear that the punishment should notbe considered as a bar for considering the question of promotion ofthe present first respondent, the present petitioners ought not tohave rejected the representation made by the first respondent5.8.2003. He has further submitted that since the first respondenthas approached the legal forum against the order passed by theDepartment, he has been victimized. He has reiterated the contentions https://hcservices.ecourts.gov.in/hcservices/ raised before the Tribunal. He has further submitted that theTribunal on consideration of the facts and circumstances has passed areasoned order and it should not be interfered with.7. This is an unfortunate case where a person has beendeprived of his promotion because of the vindictive attitude of thepetitioners. The first respondent was served with charge memo on11.9.1991 to which the first respondent submitted his explanation on16.9.1991. The Enquiry Officer submitted his report on 26.11.2003holding that there was no direct evidence to show that there wascollusion between the first respondent and the importer and there wasno loss of revenue. Though such a report was submitted by theEnquiry Officer, the Commissioner of Customs imposed penalty ofreduction of the first respondent's pay by two stages for a period oftwo years by order dated 24.1.1997 without issuing any notice to thefirst respondent. In the O.A.No.37 of 1998, preferred against suchorder, the Tribunal by its order dated 7.1.2000 quashed the order ofpunishment. Against such order of the Tribunal, the Department filedWP.No.12669 of 2000, wherein the Division Bench after hearing bothsides held as follows :-"12. The incident had occurred in the year 1991. Inview of such a long lapse of time, it would not be in theinterest of justice to reopen the case for a further formalenquiry. On the other hand in view of the conclusion ofthe enquiry officer, the delinquent cannot be allowed to goscot free.13. In course of hearing of the matter, we hadsuggested to the counsel appearing for the respondent No.2that even though major penalty should not have beenimposed, a minor penalty should be imposed so that thematter can be concluded obviating the necessity of afurther enquiry which may result in further harassment orinconvenience. Learned Counsel for respondent No.2 did nothave serious objection to such suggestion, but it wassubmitted by him that if some minor penalty is imposed itmust be made clear that such minor penalty should not standin the way of promotion.14. In the peculiar facts and circumstances, interestof justice would be served by modifying the order of theTribunal and directing that there shall be punishment ofstoppage of one increment without cumulative effect andsuch punishment should not be considered as a bar forconsidering the question of promotion of the respondentNo.2."8. After reading of the aforesaid order, one would normallyexpect that the matter has come to an end. But, that is not the endof the matter, on the other hand, the petitioners have made the first https://hcservices.ecourts.gov.in/hcservices/ respondent to start another round of litigation by passing theimpugned order dated 6.1.2004, mis-interpreting the aforesaid orderof the Division Bench. The relevant portion of the impugned order isas follows :-". . . In view of the High Court order the penaltyorder has been modified and instead of reduction in pay bytwo stages for a period of two years with cumulative effectit has become one increment cut without cumulative effect.Accordingly, the Accounts section will rework the pay andallowances for the material period.The issue of promotion with retrospective effect hasbeen examined and in view of the fact that the Hon'ble HighCourt has neither quashed the disciplinary proceedings norgiven directions for promotion with retrospective effectthe representation is rejected. Further the fact that thetwo more charge sheets were pending in the year 2000 hasalso to be taken into account."9. One would have no quarrel with regard to first part ofthe impugned order. We are constrained to take a serious view ofthe matter so far as the second part of the order is concerned forthe reasons stated under.The Division Bench in the earlier Writ Petition, whileconsidering the question whether notice had been issued to thepresent first respondent indicating that the disciplinary authorityis likely to differ from the report of the enquiry officer, was primafacie satisfied that when a major punishment was being imposed,direct observance of the procedure as explained by the Supreme Courtin 1998 SCC (L&S) 1783 (PUNJAB NATIONAL BANK AND OTHERS v. KUNJBEHARI MISRA) should have been followed and in the case on hand sincesuch procedure was not followed the Division Bench did not find anyfault with the order of the Tribunal. Even though the DivisionBench has come to the aforesaid conclusion it was suggested that aminor punishment shall be imposed so that the matter can be concludedobviating the necessity of a further enquiry which may result infurther harassment or inconvenience. In such circumstances, to meetthe ends of justice the Division Bench modified the punishment tostoppage of one increment without cumulative effect and observed inunambiguous words that such punishment should not be considered as abar for considering the question of promotion of the firstrespondent. 10. When this was the factual scenario, the Commissioner ofCustoms passed the impugned order interpreting the order of theDivision Bench stating that the Hon'ble High Court has neitherquashed the disciplinary proceedings nor given directions forpromotion with retrospective effect. This is nothing but mis-interpretation of the order of the High Court according to their https://hcservices.ecourts.gov.in/hcservices/ whims and fancies. The facts of the case would show that the firstrespondent has been deprived of his promotion due to pending ofcharges which were levelled against him one after another. FirstCharge Memo was issued in the year 1991. When the enquiry officersubmitted his report to the said charge on 26.11.1993 holding thatthe charges were not proved, the Department issued second charge memodated 13.7.1994. Before passing the final order in such secondcharge memo, conveniently issued a third charge memo on 24.7.1997.Thereafter, passed the final order in the second charge memo on5.1.1998 imposing major penalty reducing pay by two stages for aperiod of two years with cumulative effect i.e., from 5.1.1998 to4.1.2000. So far as third charge memo is concerned, final order waspassed on 30.4.1998 imposing punishment of reducing pay by one stagefor a period of one year without cumulative effect and to runconcurrently. Therefore, the Department has cunningly deprived thefirst respondent of his promotion from 1991, when the first chargememo was issued, till 4.1.2000, when the punishment imposed underthird charge memo came to end i.e., for a period of 9 years. Atlast, the first respondent retired voluntarily from service on1.8.2004. 11. Taking into consideration the peculiar facts of thepresent case and the orders passed by the Division Bench and theTribunal in the earlier round of litigation, we are of the consideredopinion that the first respondent has been deprived of his rightfulpromotion from 1991 and he become eligible and considered fit forpromotion in the DPC convened in the year 1992-1993. The petitionershave erred in mis-interpreting both the orders of the Tribunal andHigh Court thereby denied the due promotion of the applicant. If therelief granted by the Tribunal would have been granted by thepetitioners while considering the representation of the firstrespondent dated 5.8.2003, the question of once again approaching theTribunal and obtaining an order to satisfy the query of thepetitioners that the High Court has not directed them to givepromotion with retrospective effect would not have arisen. 12. For the aforesaid reasons, we do not find any error inthe order passed by the Tribunal and the writ petition is dismissed.The writ petitioners/respondents are directed to promote theapplicant with retrospective effect based on the recommendation ofthe DPC held in respect of the year 1992-1993 notionally and suchpromotion shall have prospective effect in respect of all his retiralbenefits as well as pension payments in future. The writ petitionersare further directed to issue necessary orders in this regard withina period of six weeks from the date of receipt of a copy of thisorder. Taking into consideration the fact that the first respondenthas been deprived of his promotion for a period of about nine yearsand the fact of mis-interpreting the order passed by the DivisionBench of this Court, we are inclined to impose costs of Rs.10,000/- https://hcservices.ecourts.gov.in/hcservices/ (Rupees Ten thousand only). Consequently, M.P.No.1 of 2007 isclosed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardpkTo1.The RegistrarThe Central Administrative Tribunal,Chennai 104.2. The Chairman Central Board of Excise & Customs, Ministry of Finance, Department of Revenue, New Delhi.3. The Chief Commissioner of Customs, Customs House, Chennai 600 001.4. The Commissioner of Customs, Customs House, Chennai 600 001.+1cc to Mr.M.Gopikrishnan, Advocate Sr 59289+1cc to Mr.R.Kannan, Advocate Sr 59476DM (CO)km/9.10. W.P.No.18439 of 2007