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2019 (4) TMI 1279 - HC - Indian LawsPunishment of “Compulsory Retirement” - conduct led to conviction - criminal charge under Customs Act, 1962 - case of petitioner is that what he insisted upon is production of original documents which could not be produced by Presenting Officer - HELD THAT:- The documents relied in support of charges were supplied to petitioner but what he insisted upon is production of original documents which could not be produced by Presenting Officer since original documents belong to Custom Department and Presenting Officer had no access to them - in a departmental proceeding when copies of documents are supplied and it is not shown that said copies are manufactured or tempered, mere fact that original documents are not made available, will not vitiate proceedings as non production of original documents will not make copies of such documents inadmissible in departmental inquiry since Evidence Act, 1872 is not applicable. It cannot be said, in the entirety of facts, that inquiry proceeding in the present case is vitiated in law for non supply or non production of original documents in oral inquiry. Imposition of penalty upon petitioner - HELD THAT:- The factum of carrying of contraband foreign goods by petitioner causing imposition of penalty upon him is a proven fact. Mere oral evidence produced before Inquiry Officer could not have been treated to be a discharge of burden by petitioner. In any case, in assessment of evidence, it is upon Inquiry Officer to believe one evidence and discard another and unless wholly inadmissible evidence has been accepted or there is some otherwise illegality in departmental inquiry, this Court in judicial review would not sit in appeal over the manner in which evidence has been assessed by disciplinary authority. Here is a case where petitioner has been penalized by disciplinary authority by imposing punishment of compulsory retirement on a charge which has not been proved at all since there was no evidence to prove misconduct of petitioner and, therefore, punishment imposed upon petitioner is patently illegal, cannot be sustained. It is true that in departmental inquiry when a person is punished this Court does not enter into judicial review by assessing evidence like appellate authority but where a charge is levelled and incumbent held guilty of misconduct without adducing any evidence, such order of punishment cannot be sustained. The impugned order of punishment and appellate order cannot be sustained - petition allowed.
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