Smt. Lakshmi v. Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2008CORAMTHE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAANDTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.33358/2003Smt.Lakshmi .. Petitioner-Vs.-1.Union of India rep.by the Secretary to Govt. Of India Department of Revenue, Ministry of Finance, North Block New Delhi-1.2.The Chief Vigilance Officer Central Board of Excise & Customs New Delhi-1.3.The Commissioner of Customs [Port] Custom House, Rajaji Salai, Chennai 600 001.4.Registrar Central Administrative Tribunal High Court, Chennai 600 104. ... RespondentsPRAYER: Petition under Article 226 of The Constitution of India prayingfor the issuance of a Writ of certiorari to call for the connectedrecords leading to the issuance of the order dated 6.6.2002 of the 3rdrespondent as confirmed by the order in F.No.C 16018/8/2002-Ad.v dated6.11.2002 of the 2nd respondent together with the order of the 4threspondent dated 12.9.2003 passed in OA.No.8 of 2003 and quash the same.For Petitioner : Mr. V.ParthibanFor Respondents : Mr.V.Ravi, ACGSCO R D E RK.CHANDRU, J.Heard the arguments of Mr.V.Parthiban, learned counsel for thepetitioner and Mr.V.Ravi, learned Additional Central Government StandingCounsel and have perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner is aggrieved by the order of the CentralAdministrative Tribunal [for short 'Tribunal'] made in OA.No.8 of 2003dated 12.9.2003 and has filed the present writ petition.3.The petitioner was given a Memo dated 29.12.1992 asking herexplanation as to under whose orders she and another officer theyconducted examination/verification of Seals in respect of theconsignment belonging to a shipping bill. Thereafter a charge memo wasgiven to her under Rule 14 of CCA [CCS] Rules, 1965 only on 24.4.1998.Subsequent to the charge memo, an enquiry was conducted and it was heldthat the petitioner who was an Examiner, without physically examiningthe goods on 02.11.1992 certified the said goods. 4.In her reply the petitioner had stated that the charge memo wasissued after six years. Though she had stated that she wrote theexamination report on 02.11.1992 whereas the Ship M.V.Tiger Star hadleft with the Container on 31.10.1992 itself. The Enquiry Officer heldthat the first charge was not substantiated but the second charge wasproved. After getting the explanation from the petitioner a final orderwas passed by the Disciplinary Authority imposing a penalty of reductionin her pay by four stages from Rs.8,300 basic to Rs.7,600 basic in thetime scale of pay of Rs.6500-175-9000 with immediate effect. Whilepassing the order the Disciplinary Authority took into account that itwas a case of imposing major penalty. But considering that the incidenthad taken place ten years ago, she need not be given a major penalty. Asagainst the said order, she filed an appeal to the Appellate Authorityat New Delhi and the Appellate Authority rejected her appeal by an orderdated 24.10.2002. It was thereafter, she filed the original applicationbefore the Tribunal.5.The official respondent has filed a reply and stated that thedelay was due to the reason that the matter was taken by the CentralVigilance Commission and their concurrence was obtained and it took sometime for getting the said order. But however, in the present case, thepetitioner was aware of charges as a show cause memo was given in theyear 1992 itself. The Tribunal held that there was no prejudice causedto the petitioner due to the six years delay and that in the presentcase, there was no need to follow elaborate procedure and the petitionerhad also submitted her written statement for the enquiry report.6.The Tribunal also relied upon the judgment of the Supreme Courtreported in 1998 [9] SCC 553 [SECRETARY TO GOVERNMENT AND OTHERS VS.SRIVAIKUNDATHAN] for the proposition that the Tribunal cannot sit inappeal over the decision of the Enquiry Officer and the Tribunal was notrequired to examine the nature of the evidence as if it was a criminaltrial. In the present case, we have also gone through the recordsindependently and found that the petitioner had admitted her charge ofcertifying the consignment without physical verification. https://hcservices.ecourts.gov.in/hcservices/

7.Mr.V.Parthiban, learned counsel relied upon the judgments ofthis court reported in 1984 TNLJ 123 [V.S.RAMANARAYANAN VS. THE FOODCORPORATION OF INDIA REPRESENTED BY ITS ZONAL MANAGER, MADRAS-6] and ofthe Supreme Court reported in AIR 1990 SC 1308 [THE STATE OF MADHYAPRADESH V. BANI SINGH AND ANOTHER]. The learned counsel relied on theabove judgments for the purpose of showing that when there was aninordinate delay in conducting an enquiry, the court can interfere withthe enquiry itself. The Supreme Court in the Bani Singh's case [citedabove[ the delay was twelve years and it was found by the Supreme Courtthat the said delay was not explained by the Department and in that viewof the matter relief was granted. The same was the position in thedecision rendered by this court in Ramanarayanan's case cited supra. 8.The learned counsel also relied upon the Judgment of this courtreported in 2003 [3] MLJ 372 [UNION OF INDIA, MINISTRY OF HOME AFFAIRS,REP.BY THE DIRECTOR GENERAL, CISF, NEW DELHI, AND OTHERS V.T.K.CHOUDHURI] wherein this Court had followed the above two decisionsas referred to above. Lastly, the learned counsel relied upon theJudgment of this Court in T.S.JAYACHANDAR V.THE CENTRAL ADMINISTRATIVETRIBUNAL AND OTHERS an unreported decision rendered in WP.No.33978/2002dated 11.12.2003. In that case, another person of the same departmentwas charge sheeted. There was a delay and it was not explained. Itwas held that if the delay was not explained, a charge memo can bequashed. 9.However, it is relevant to refer to paragraph 10 of the saiddecision of this court which is extracted below:-"10.First, let us proceed to consider the question ofdelay in the Departmental proceeding against the writpetitioner. The Supreme court, in the decision reportedin 1998 [4] SCC 154 [cited supra], has pointed out thatit is not possible to lay down any predeterminedprinciples applicable to all cases and in all situationswhere there is a delay in concluding the disciplinaryproceedings and that the court has to take intoconsideration all the relevant details. The SupremeCourt made it clear that the delinquent employee has aright that disciplinary proceedings against him areconcluded expeditiously and he is not made to undergomental agony. The court has to take into consideration,in deciding a given case, the nature of charges, itscomplexity and on what account the delay has occurredand if the delay is unexplained, prejudice to thedelinquent employee is writ large on the face of it."[Emphasis added]10.We do not know as to how these two decisions render anyassistance to the petitioner, especially in the present case there wasno considerable delay and the same was also explained. Further, thepetitioner never expressed any prejudice because of the delay and the https://hcservices.ecourts.gov.in/hcservices/ present case the issue was whether the petitioner had certified thegoods when the ship was in the Port or after it had left the Port. Inher own explanation she had admitted the charge and the department hadalso granted leniency in the matter of imposition of penalty. 11.Further, the Supreme Court in the decision reported in 1995 [3]SCC 134 [Deputy Registrar, Co-operative Societies, Faizabad V.SachindraNath Pandy and others] held that the delay in framing charge cannot be aground to interfere with the charge memo and the relevant passage foundin paragraph 7 of the said judgment is extracted below:-Para 7:"On a perusal of charges, we find that thecharges are very serious. We are, therefore, notinclined to close the matter only on the ground thatabout 16 years have elapsed since the date ofcommencement of disciplinary proceedings, moreparticularly, when the appellant alone cannot be saidresponsible for this delay...."12.The Supreme Court in 1996 [3] SCC 157 [Secretary toGovernment, Prohibition and Excise Department V. L.Srinivasan], has heldthat the charge cannot be quashed only on the ground of delay and anyfinding recorded by the court will prejudice the enquiry. The SupremeCourt has also pulled up the member of the Administrative Tribunal forhaving interfered with the charge memo as if the Tribunal is theappellate authority. The following passage found in paragraph 3 of thesaid judgment makes the position very clear:Para 3:"We are informed that charge-sheet was laid forprosecution for the offences of embezzlement andfabrication of false records etc., and that the offencesand the trial of the case is pending. The Tribunal hadset aside the departmental enquiry and quashed thecharge on the ground of delay in initiation ofdisciplinary proceedings. In the nature of the charges,it would take a long time to detect embezzlement andfabrication of false records which should be done insecrecy. It is not necessary to go into the merits andrecord any finding on the charge levelled against thecharged officer since any finding recorded by this courtwould gravely prejudice the case of the parties at theenquiry and also at the trial. Therefore, we desistfrom expressing any opinion on merit or recording any ofthe contentions raised by the counsel on either side.Suffice it to state that the Administrative Tribunal hascommitted grossest error in its exercise of the judicialreview. The member of the administrative tribunalappears to have no knowledge of the jurisprudence of theservice law and exercised power as if he is an appellateforum dehors the limitation of judicial review. This isone such instance where a member had exceeded his powerof judicial review in quashing the suspension order and https://hcservices.ecourts.gov.in/hcservices/ charges even at the threshold. We are coming acrosssuch orders frequently putting heavy pressure on thiscourt to examine each case in detail. It is high timethat it is remedied."13.Very recently, the Supreme Court in 2007 AIR SCW 1639[Government of A.P. And others V. Appala Swamy] had indicated theparameters while interfering with a charge sheet on grounds of delay inparagraphs 10,12 and 13 which reads as follows:-Para 10:"So far as the question of delay in concludingthe departmental proceedings as against a delinquentofficer is concerned, in our opinion, no hard and fastrule can be laid down therefor. Each case must bedetermined on its own facts. The principles upon whicha proceeding can be directed to be quashed on the groundof delay are:[1]Where by reason of the delay, theemployer condoned the lapses on the part of theemployee.[2]Where the delay cause prejudice to theemployee.Such a case of prejudice, however, is to bemade out by the employee before the InquiryOfficer."Para 12:"Learned counsel appearing on behalf of therespondent, however, placed strong reliance on adecision of this court in M.V.Bijlani V. Union of Indiaand others [2006 [5] SCC 88]. That case was decided onits peculiar facts. In that case, even the basicmaterial on which a departmental proceedings could beinitiated was absent. The departmental proceedings wasinitiated after 6 years and continued for period of 7years. In that fact situation, it was held that theappellant therein was prejudiced.Para 13:"Bijlani [supra], therefore, is not an authorityand, in fact, as would appear from the decision inP.D.Agarwal [supra], for the proposition that only onthe ground of delay the entire proceedings can bequashed without considering the other relevant factorstherefor." https://hcservices.ecourts.gov.in/hcservices/

14.In the light of the above decisions of the Supreme Court, thethree orders of this court cited by the learned counsel had lost itsefficacy. In the light of the same, we do not find any infirmity in theorders passed by the Tribunal and accordingly, the writ petition standsdismissed. However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarapTo1.The Secretary to Govt. Of India Union of India Department of Revenue, Ministry of Finance, North Block New Delhi-1.2.The Chief Vigilance Officer Central Board of Excise & Customs New Delhi-1.3.The Commissioner of Customs [Port] Custom House, Rajaji Salai, Chennai 600 001.4.Registrar Central Administrative Tribunal High Court, Chennai 600 104.1 cc to M/s.Paul and Paul vide SR.No.18510SJI (CO)MMP 11.4.08 W.P.No.33358/2003