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2016 (6) TMI 183 - GAUHATI HIGH COURT

2016 (6) TMI 183 - GAUHATI HIGH COURT - TMI - Delay in initiating the disciplinary proceedings against the officer - Whether the delay of more than twelve years in initiating the proceedings, that remained unexplained, strikes at the root of the charge memo and the proceedings - Held that:- on the alleged irregularities against respondent pertaining to the period April 2002 to February 2003, the memorandum of charge was issued on 5.3.2014/7.3.2014 i.e. at a distance of twelve years. The only exp .....

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orth to give the least benefit of credence to the said explanation.

The irregularities which were the subject matter of the disciplinary proceedings initiated vide Charge Memo is stated to have taken place in 2002-2003. Apparently, the department cannot feign ignorance and say that it came to learn of it only in the year 2014. This is belied by the very fact that the department was alive to the investigations made by CBI and the proceedings before the DRI. It is not comprehended as t .....

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dhya Pradesh v. Bani Singh [1990 (4) TMI 286 - Supreme Court Of India] and in the case of P.V.Mahadevan v. M.D.,T.N.Housing Board [2005 (8) TMI 674 - Supreme Court Of India], as to the effect of inordinate and unexplained delay vis--vis initiation of disciplinary proceedings, the present writ petition is devoid of legal merits. Therefore, for all the reasons stated above, the judgment of the Tribunal cannot be faulted on any legally tenable grounds.

Whether the departmental proceedi .....

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5) TMI 509 - SUPREME COUR] meets the second point. - Decided against the petitioner - WP (C) 7682/2015 - Dated:- 2-5-2016 - T. Vaiphei And Manojit Bhuyan, JJ. JUDGMENT (Manojit Bhuyan, J.) 1. At the relevant time the Respondent i.e. Bamin Tari was serving as the Additional Commissioner in the Department of Customs & Central Excise, being so promoted w.e.f. 30.7.2009. Memo of charges was issued against him on 5.3.2014/7.3.2014 under Rule 14 of the Central Civil Services (Classification, Contr .....

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/s Tech Industrial Corporation, M/s Brightwel Enterprises, M/s International Engineers and M/s Vikrant Overseas and allowed them to avail undue Duty Entitlement Pass Book (DEPB) benefits to the tune of about ₹ 8.61 Crores at the cost of Government exchequer. He allowed final processing of shipping bills and the consignments to be let exported . Shri Bamin Tari, the then DC, did not alert/supervise the subordinate staff i.e. Superintendents/ Inspectors concerned to verify the genuineness of .....

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ovt. servant. Thus, he contravened the provisions of Rule 3(1)(i),(ii) and (iii) and Rule 3(2) (i) and (ii) of the CCS (Conduct) Rules, 1964. Article-II Shri Bamin Tari, the then Deputy Commissioner, facilitated the Customs clearance of cheap quality export consignments of the firms controlled by Shri Vinod Kumar Garg and managed by Shri Mudit Kumar Tiwari, for pecuniary gain. Shri Bamin Tari used to receive ₹ 5000/- to ₹ 7000/- pr container for Customs clearance of export consignmen .....

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) Rules, 1964. 2. The gist of the charges was that while posted as the Deputy Commissioner of Customs, Inland Container Depot, Ballabhgarh, Haryana during the period April 2002 to February 2003 he failed, both in his capacity as a Supervising Officer and as an Assessing/Examining Officer, to maintain integrity and devotion to duty and caused loss to the Government Exchequer by not only allowing the firms so mentioned to avail undue Duty Entitlement Pass Book (DEPB) but also in facilitating the f .....

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riod he was serving as the Additional Commissioner, Central Excise and Service Tax at Dibrugarh, Assam. The basic grounds of challenge taken is that the memo of charges had been issued after an inordinate and unexplained delay of more than 12 (twelve) years, having regard to the period i.e. April 2002 to February 2003 when irregularities were alleged to have been committed. Further, on the same set of charges a detailed enquiry had been conducted by the Central Bureau of Investigation (CBI) and .....

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g Bamin Tari. In this context it was also contended that although on a subsequent date another Commissioner of Central Excise (Adjudication) had imposed penalty upon Bamin Tari and other Custom Officers on denovo proceedings, the said orders imposing penalty were eventually set aside by the Hon'ble High Court of Delhi in WP(C) 1676/2010. Further ground of challenge was that the respondent authorities had deliberately and with malafide intention issued the memo of charges at the time when he .....

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disciplinary proceedings after twelve years was a result of a serious exercise involving threadbare examination of the available materials so as to obviate any element of harassment that an innocent may be subjected to and also to ensure that an errant officer is not allowed to go unpunished. Also, the orders in original, which formed part of Annexure-3 to the Charge Memo, originated only in December, 2009. Third, although Bamin Tari had been exonerated by the CBI, he did not get any relief in .....

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n 12 years in the initiation of the disciplinary proceedings, but Charge Memo had also been issued on the same set of charges already dealt with by the DRI. Bamin Tari was exonerated in the proceedings initiated by Shri Gurban Singh and although punishment was imposed in the subsequent de novo proceedings, the same had been set aside by the Hon'ble Delhi High Court. The Tribunal also held that the CBI had also, after a detailed investigation, exonerated Bamin Tari and the Closure Report subm .....

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ve canvassed the following grounds of challenge: (i) The acceptance of the Final/Closure Report of the CBI by the Special Judge, CBI, Ambala is not tantamount to acquittal on merit and, therefore, the same had no bearing on the departmental proceedings. (ii) The order imposing penalty, so passed in the de novo proceedings by Shri A.P.S. Suri, Commissioner of Central Excise (Adjudication), had been quashed by the Hon'ble Delhi High Court only on the writ petition filed by one Shri S.L. Bansal .....

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ficer. 7. We have heard Mr. S. C. Keyal, learned ASGI for the petitioners as well as Mr. S. Dutta, learned counsel for the respondent. 8. At the outset it would be apposite to notice the grounds of challenge made to the memorandum of charges before the Tribunal. The statements made in paragraphs 5.2, 5.3, 5.4 and 5.5 of the Original Application sets out the case of Bamin Tari, which are reproduced hereunder: 5.2 For that, on the same set of alleged chares, the C.B.I. premier investigating agency .....

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charges, brought against the applicant, the C.B.I. did not find any infirmity or illegality in the matter of clearance of export goods belongs to Shri Vinod Kr. Garg's companies and finally C.B.I. submitted a closure report dtd. 28.12.2007, whereby the present applicant was exonerated against the same set of alleged charges and the said closure report of the C.B.I. accepted by Special Judge, Ambala on 28.02.2008, as such the present respondents has no jurisdiction to further proceed against .....

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e and quashed. 5.3 For that, on the same set of allegation/charges, the Directorate, Revenue Intelligence (in short DRI), Govt. of India also initiated another proceeding by issuing a show cause notice dtd. 13.09.2004 alleging violation of Sec. 114 of the Customs Act, 1962, however, it would be evident from concluding part of the adjudication order in original passed by Shri Gurban Singh, the then, learned Commissioner of Central Excise (Adjudication), New Custom House, Near IGI Air Port, New De .....

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rges which are brought against the applicant in the memorandum of charge dated 07.03.2014 after inordinate delay of more than 12 years without giving any reasonable explanation and on that score alone the impugned charge memo dtd. 05/07.03.2014 is liable to be set aside and quashed. 5.5 For that, subsequently Shri A.P.Suri another Commissioner of Central Excise (Adjudication) subsequently passed denovo adjudication order dtd. 08.12.2009, 21.12.2009, 22.12.2009, 23.12.2009 and 23.12.2009. In the .....

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d W.P.(C) 1676/2010, however, the Hon'ble High Court of Delhi after detailed consideration of the grounds raised in the case of similarly situated employees and also after hearing the arguments of the parties and on perusal of the materials on records was pleased to set aside the adjudication orders imposing penalty upon the other custom officials and the order of the Tribunal dated 18.06.2009. 9. The facts disclosed in the aforesaid paragraphs of the Original Application are not denied by t .....

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than twelve years in initiating the proceedings, that remained unexplained, strikes at the root of the charge memo and the proceedings. The second consideration would be whether the departmental proceedings be allowed to stand when on the same set of charges, evidence, witnesses and circumstances the respondent Bamin Tari was exonerated by statutory authorities. 11. As regards the first point on the inordinate and unexplained delay, the Apex Court in a catena of decisions have, in no uncertain .....

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ceeding is a very serious exercise and involves threadbare examination of the materials available, as such, care has to be taken to ensure that an innocent is not subjected to harassment nor an errant officer escapes punishment because of hasty and scantily deliberated decision in a given case. This explanation to justify the delay is weak, uninspiring and made as a matter of course. No cogent explanation is set forth to give the least benefit of credence to the said explanation. Not to be left .....

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harge memo, which decisions had been noticed and relevant extracts reproduced by the Tribunal : (i) State of Madhya Pradesh v. Bani Singh- [1990(Supp) SCC 738] (ii) P.V.Mahadevan v. M.D.,T.N.Housing Board- [(2005)6 SCC 636] 13. The irregularities which were the subject matter of the disciplinary proceedings initiated vide Charge Memo dated 5.3.2014/7.3.2014 is stated to have taken place in 2002-2003. Apparently, the department cannot feign ignorance and say that it came to learn of it only in th .....

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