TMI Blog2000 (1) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... CCS (CCA) Rule and requiring him to make his representation with regard to that proposal, before this bench in OA 415/97. He had urged there the main grounds that the Disciplinary Authority had not applied his mind independently before initiating action, having acted on the contrary in that behalf merely because the Vigilance Commission had reiterated its earlier view that action for imposing minor penalty should be taken against the applicant, and that the impugned show cause notice there had been issued without considering the representation, dated 11-6-1997 submitted by the applicant. This Bench, in its earlier order, dated 11-2-1997 in that OA 415/97, did not consider it appropriate at that stage to quash the show cause notice itself. However, it directed the respondents, of whom the first two, namely, the Union of India represented by the Secretary to Government of India, Ministry of Finance, Department of Revenue and the Chairman, Central Board of Excise and Customs Department of Revenue, Ministry of Finance, are the same in the present O.A. to consider the representation which had already been received before the issue of memorandum of charges, which had been done in the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent department had earlier and after a careful investigation had concluded that no action was necessary against the applicant, the proceedings impugned here were initiated only at the instance of the Vigilance Commission when the latter had reiterated its earlier opinion that such action should indeed be taken; that the first respondent has prematurely come to the conclusion that the applicant was guilty of the charges without considering the grounds urged by the applicant in his defence at Annexure A3; that though the applicant has specifically sought for an oral enquiry to prove his innocence and also effectively to contradict the position taken by the respondent department as reflected in the charge memo, the first respondent has not considered that request nor did he pass any order thereon, which he was required to do under the specific instructions issued by the nodal Department of Personnel and Training under Rule 16 of the CCS(CCA) Rules; that for the alleged irregularities committed by the assessee, M/s. Sipani Automobiles Limited, while obtaining credits under the Modvat scheme and in the payment of excise based on wrong and undervalued price lists, an enquiry wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the fraudulent credits and irregularities perpetuated by the assessee was brought to the notice of the Department by the agencies, the applicant in his capacity as the Assistant Collector (Assistant Commissioner) should have pointed them out to his Commissioner right away and should not have waited till 1993, by which time the issue had become a full-fledged audit para and the subject matter had come up for oral evidence before the PAC. They have contended that the action on the part of the C.O. i.e. the applicant was belated and that the applicant ought to have taken prompt action and he should have brought to his superiors notice the fact that RT 12 and the price list had been kept pending. The respondents have finally said in their reply statement that though the applicant is not to be blamed entirely for all these lapses, at the same time he could not have been absolved of his impassivity and failure to take action when the fraudulent availment of Modvat was pointed out. At the time of hearing the arguments, we observe, the learned counsel for the respondents admitted that the reports of the agencies on the irregularities committed by the assessee were brought specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and just and that the OA, being devoid of merits, may be dismissed with costs. 11. The respondents have also made available to us the concerned files dealing with the disciplinary proceedings against the applicant and another officer, one Shri H.R. Krishnamurthy. 12. We have carefully gone through the materials placed before us and heard the learned counsel appearing for the parties. 13. We notice that the first charge against the applicant is as follows : ARTICLE - I Shri G. Sreekumar, while working as Assistant Collector of Central Excise of Bangalore Commissionerate after assuming charge as the Assistant Collector w.e.f. 1-5-1991 failed to initiate any action to remedy the fraudulent availment of Modvat credits by M/s. Sipani Automobiles Ltd., Bangalore (M/s. SAL) even after the said irregularities were pointed out by the Internal Audit Party in their Audit Note No. 109/91, dated 7-10-1991 for the period 12/90 to 6/91, the irregularities brought out by the Accountant General s Audit Party vide their LAR No. RA/II/CE/J/91-92, dated 24-7-1991 for the period 3/90 to 3/91 and the subsequent test checks conducted by the Accountant General s Audit Party for the period fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department as early as July 1991. He should have brought to his superiors notice that RT 12 and the price list had been kept pending. Though he may not be blamed entirely for all these pendencies he cannot be absolved totally of his impassivity and failure to take prompt action when the fraudulent availment of Modvat was pointed out. (underlined by us) 16. We have already pointed out that the respondents have admitted at the hearing that these irregularities were brought to the notice of the official superiors of the applicant simultaneously by the same agencies. 17. Further, it is evident that while examining the defence of the applicant what was held at the level of Disciplinary Authority even in respect of the first charge was that he did not bring promptly to his superiors notice that RT 12 and the price list had been kept pending. We observe that this was not the charge against under Article-I of the charge memo. Though a statement has further been made on behalf of the Disciplinary Authority in the concerned file that the applicant could have bestowed his personal attention to the extent of keeping vigil over the activities of the Unit and of directing his subordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves, the failure of his predecessor not to have prepared provisional assessment till he took charge on 1-5-1991, could not be laid at his door. 19. We find that there has hardly been any consideration given to these contentions urged by the applicant in his reply to the charge memo in respect of that second charge. On behalf of the Disciplinary Authority the contentions of the applicant in respect of the second charge have not been specifically discussed at all. On the contrary, on the contentions made by him, both in respect of the first and the second charge, the following general remark has been recorded on behalf of the Disciplinary Authority: His submissio has been examined carefully. Whatever has been contended by him, is not disputed. Even at the level of UPSC, we find that the above contentions of the applicant in respect of the second charge have not been dealt with specifically, even though they have been summarised and referred to. The UPSC have thereafter merely recorded their view that being the jurisdictional Assistant Collector incharge, the applicant should have shown initiative in getting the work expedited and that there is no indication that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other technical and legal deficiencies in the impugned order. However, before parting with this case we must observe that both the Disciplinary Authority and the UPSC have allowed their examination of present case to be influenced by the fact that the P.A.C had made certain remarks. The service jurisprudence does not recognise any independent role for such remarks outside the parameters laid down for disciplinary proceedings in respect of a Government Officer for awarding any penalty to him as per law and in particular in terms of the constitutional guarantees extended to the Government servants. 22. For the reasons discussed in detail above, we quash the impugned order passed on behalf of the first respondent in the name of the President of India dated 30-6-1999 available at Annexure A4, which was communicated with the forwarding letter, dated 13-7-1999 by the Commissioner of Customs, Bangalore. We further declare that the applicant is eligible for all consequential benefits arising from this order and direct the respondents to grant those benefits to him including promotion, for which he was eligible for consideration at the appropriate time ignoring the effect of these disci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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