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TMI Blog2015 (4) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... moted to the rank of Commissioner w.e.f. 01.11.2002. On 21.12.2011, he was posted as Commissioner (Central Excise, Customs & Service Tax) at Kanpur. On 29.12.2011, 'Naka' was set up under the orders of one P.K. Katiyar, Additional Commissioner (Preventive), Kanpur for detection of evasion of excise duty and the same were ordered to be removed vide order dated 09.01.2012 by the Assistant Commissioner (Preventive) with prior approval of the applicant. The applicant alleges that the then Chairman assumed duties in mid August, 2012 and the applicant was transferred within a month thereafter on 12.09.2012 as Commissioner (Appeals) to Vadodara where he continues to date. A Chargesheet was served upon the applicant vide impugned Memorandum dated 10.09.2013 containing four Articles of charge, first of which is that the applicant without disclosing and discussing any intelligence imposed a Naka upon M/s. Prabhu Astha Enterprises in order to 'put pressure on the assessee to meet his illegal demands'. This action of the applicant is alleged to be without any legal authority and in supersession of the process prescribed for the same under Boards Circular dated 30.03.2009. The second Article o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n OA No.993/2014 before this Tribunal. In the meantime, enquiry officer was appointed on 09.01.2014 and on 13.01.2014, CVC 1st stage advice was served upon the applicant. On 15.04.2014, the Tribunal disposed of OA No. 993/2014 with the direction to hold review DPC. 6. A counter affidavit has been filed by the respondents denying the pleas taken by the applicant in the OA, to which the applicant has also filed a rejoinder application. 7. We have carefully gone through the pleadings of the parties and also the documents as adduced by them. We have also heard the arguments advanced by the learned counsel for both the parties. 8. In order to cut the long story short, we have decided only to refer to the respective points of the parties based upon their written submissions without going through the submissions made at each stage. 9. When the matter was taken up for hearing on 28.01.2014, this Tribunal heard the parties at some length and recorded the gist of their arguments, which briefly stated is that before taking a decision to initiate disciplinary proceedings, a preliminary enquiry ought to have been conducted; there should have been an independent application of mind by the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings against him at this stage itself. In the circumstances, the applicant is given liberty to make a detailed representation to the disciplinary authority raising such issues which he considers relevant, including those noticed hereinabove. If such representation is made within one week, the disciplinary authority would decide the same as expeditiously as possible, preferably within a period of four weeks. Till then, the inquiry into the charges contained in the impugned memo would remain in abeyance. List on 04.03.2014. Since the stand of the respondents in their counter reply to the OA is expected to be the same as the view to be taken by the disciplinary authority in the representation to be made by the applicant. The respondents would file reply to the present OA within one week after the order of the disciplinary authority. Accordingly, the applicant submitted his representation on 01.02.2014 and the respondents decided the same by passing a reasoned and speaking order on 28.02.2014. 12. From a perusal of the aforesaid order dated 28.02.2014, we find that the respondent authority has taken note of all the points raised by the applicant in his representation dated 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt RUDs are to be furnished at this stage. The order dated 28.02.2014 further states that though these facts had been clarified to the applicant vide reply dated 20.11.2013, yet he kept on writing letters seeking additional documents. The substance of imputations made against the applicant can only be established after an enquiry. The applicant brought out how the disciplinary authority violated the mandatory provisions of Rules of 1965. The CVC vide OM dated 24.06.2013 in agreement with CVO, CBEC advised initiation of major penalty proceedings against the applicant. However, the Commission in disagreement with the CVO, CBEC, also advised initiation of major penalty proceedings against P.K. Katiyar, Additional Commissioner, Ashutosh, AC, M.R. Mishra, Supdt. And A.M. Mehrotra, Inspector. Insofar as the applicant is concerned, there was unanimity in the views of CVO, CBEC and CVC for initiation of major penalty against him. Insofar as the case against four other officers named above is concerned, since the alleged misconduct pointed out by the CVC was neither a part of the complaint nor of the investigation conducted against the applicant and also since the response of the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No. 4316 of 199 1. The appeal was allowed by this Court by its order dated September 10, 1992 and the Tribunal was directed to "deal with the matter in the light of the observations made by this Court in Union of India v. A.N. Saxena21'. It was further directed that "in the meanwhile the disciplinary proceedings initiated against the respondent on the basis of the memorandum dated February 7, 1991 would, continue". It is necessary to notice the observations in the said judgment. The Bench first dealt with the submission that no disciplinary proceedings can be taken against an officer in respect of his judicial or quasi-judicial functions. It rejected the contention following the decision of this Court in Union of India v. A.N. Saxena2. While rejecting the said contention the Bench drew particular attention to the following observations in A.N. Saxena2: (SCC p. 127, para 6) "In the first place, we cannot, but confess our astonishment at the impugned order passed by the tribunal. In a case like this the tribunal, we feel, should have been very careful before granting stay in a disciplin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer appointed by him) and found that the charges are not true. It may be recalled that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this Court in T. C. Basappa v. T. Nagappa3. It was observed by Mukherjea, J. speaking for the Constitution Bench : "The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "We are, however, of the view that the High Court was in error in setting aside the charge- sheet that was served on the respondent in the disciplinary proceedings. In doing so the High Court has gone into the merits of the allegations on which the charge-sheet was based and even though the charges had yet to be proved by evidence to be adduced in the disciplinary proceedings. The High Court, accepting the explanation offered by the respondent, has proceeded on the basis that there was no merit in the charges levelled against the respondent. We are unable to uphold this approach of the High Court." 14. We are rather surprised to know that the tribunal has chosen to direct that the respondent No.1 shall be entitled to all the consequential benefits and any adverse remark made in the CR on account of minor penalty should also be WPC-539 of 2009 Page 16 of 17 expunged, despite the fact that the respondent No.1 was yet to reply to the memorandum and the Disciplinary Authority was yet to apply its mind as to whether to impose any penalty or not upon the respondent No.1. We fail to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already noted our observation in respect to articles of charges drawn up against the applicant and have categorically taken a stand that this Tribunal at this stage of the proceedings is neither competent nor does it find it desirable to enter the labyrinth of the articles of charges and the evidence for and against it. It is for the enquiry officer to analyse the evidence, of the witnesses examined and assess such documentary and oral evidence as has been submitted and to give his findings. We, by no account, propose to usurp this prerogative of the enquiry officer nor are we permitted to do so by numerous pronouncements of the Hon'ble Supreme Court, Hon'ble High Courts and of the Central Administrative Tribunal. Since this position is axiomatically accepted, we do not propose to add to the bulk of this order by citing case laws over the same. Right now confining ourselves to the records, we are content to note that the case originated on receipt of two pseudonymous complaints dated 03.01.2012 sent under the name of one O.P. Singh, Superintdent (Appeals), Kanpur and dated 13.01.2012 sent under the name of R.K. Nigam, Superintendent, Kanpur regarding alleged acts of corruption of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s extracted as below:- 5. However, it is not the case of Shri Praveen Jain that there was inordinate inexplicable delay in issue of charge sheet to him. When the case file was submitted to the disciplinary authority for seeking his orders for initiation of departmental proceedings for major penalty, a draft charge sheet, complete in all respect, with copies of the relied upon documents was submitted. The charge sheet was issued to Shri Praveen Jain with due approval of the disciplinary authority. Though a copy of CVC's first stage advice was not furnished to Shri Praveen Jain, along with the charge sheet, the same was sent to him vide letter dated 2/12/2013. In spite of Shri Praveen Jain having been supplied with copies of the relied upon documents and first stage advice of CVC, he failed to submit his written statement of defence and insisted on supply of certain additional documents other than those relied upon by the disciplinary authority. He was informed vide letter dated 20/11/2013 that as per Rule 14(12) of the CCS (CCA) Rules, 1965, he would get an opportunity to get these documents once a regul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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