TMI Blog2008 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... 39, went to a place known as 'Ramsar Gagaria Road' in the District of Barmer. There, he allegedly found a large number of smuggled goods. While bringing the same in his jeep for their delivery to the Customs Authorities it was intercepted by a Jonga Jeep, which was being driven by one Bhoor Singh, a known smuggler, accompanied by the Head Constable Bhori Das and Constable Kirta Ram of the concerned Police Station. They were brought to the Police Station and arrested inter alia on the charge that the respondent, in conspiracy with the smugglers had been taking the smuggled goods in his official jeep. 3. Proceedings under the Customs Act were initiated on the basis of the First Information Report lodged by the said Head Constable. A Criminal proceeding was also initiated against him for the alleged commission of offences under Sections 409, 120-B of the Indian Penal Code read with Section 13(2) of the Foreigners Act and Section 27 of the Arms Act as also under Section 110 of the Customs Act. 4. In the proceeding under Section 112 of the Customs Act, the defence of the respondent inter alia was that, finding some smuggled goods stranded and abandoned while he was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been made either by the Police or the Customs authorities either to deny or to confirm this serious allegation. In the circumstances, on the contrary there is no reason to disbelieve that the I.B. Officers on tour found certain goods of foreign origin which they loaded in their vehicle to be taken to the nearest Customs Offices for necessary action and they were intercepted by the Police Officers, who were sitting in a private Jonga Jeep being driven by a notorious smugger of the area, a fact which has not been denied or disputed. I, therefore, hold that the ownership of the goods under seizure cannot be attributed to S/Shri Naman Singh, Mool Singh, Narain Singh and Latif to whom the show cause notice has been issued. There is no evidence on record to indicate their involvement in the smuggling of foreign origin goods from Pakistan into India." On the basis of the aforesaid findings, whereas the goods of the foreign origin were directed to be confiscated, the charges against the respondent, Mool Singh and one Latif were dropped. 6. In the criminal proceeding against the respondent, the prosecution examined a large number of witnesses including the informant Bhori Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not examined. The Customs Officers were also not examined. No official on behalf of the department was examined, except the aforesaid Mool Singh. Mool Singh, in his evidence, fully supported the case of the respondent. He stated that the predecessors of the respondent also used to carry on similar duties and functions. He also disclosed that another officer, who had been requested to accompany them, refused to do so. He also stated that in similar situations, recovered smuggled goods had been handed over to the Customs Authorities. He also referred to an instance in regard to a similar incident which took place during the tenure of Shri D.L. Oza, CDIO. 9. Admittedly, Bhoor Singh who was driving the Jonga Jeep was in inebriated condition. He is also said to be the owner of the vehicle. How responsible police officers were traveling in the jeep of a well known smuggler defies all logic. 1 9. Respondent intended to examine one witness in the departmental proceedings, Jumma. He was not permitted to do so. During the course of the disciplinary proceedings his Defence Assistant was not available. A request was made to allow him to attend the enquiry proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, but he did not turn up at the enquiry. (iv) That the request of the delinquent officer to produce one Jumma as his defence witness was rightly turned down as there was no relevance in his deposition. (v) That the C.O. was given full opportunity to defend himself. (vi) That from the records of the departmental proceedings, it is conclusively proved that the visit of Shri NS. Shekhawat top the border area near Village Ramsar (District Barmer) on the night of August 5, 1983 was unauthorized, during which he was detected and intercepted by the local police for unauthorisedly carrying smuggled goods 530 electronic calculators, Made in Japan, 19 Sanyo tape-cum-transistors, Made in Japan, 57 'thans' measuring 1767 mts. of synthetic fabric of 'Pak' origin; which were valued at Rs. 1 lakh 30 thousand at that time in the official governmental jeep of IB beyond any conceivable call of his legitimate duties. In his deposition dated Oct. 22, 1992 before the I.O., Shri Shekhawat has admitted having visited the area near Village Ramsar, District Barmer without the knowledge/authority of his Senior Officers for undertaking such a tour which certainly required the permission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same to the facts of the present case; 5) the Tribunal committed a serious illegality in opining that a preliminary inquiry was required to be conducted after the judgment of acquittal was passed. 14. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the respondent, on the other hand, urged :- 1) That the Customs Authorities as also the learned Munsif-cum-Judicial Magistrate having held that the respondent was not guilty of the charges, the impugned judgment is unassailable. 2) Respondent being the Officer Incharge of the Unit, was entitled to take all such actions which were necessary to act as an Intelligence Officer. Jumma who could have proved that the smugglers were the target of the respondent, having not been examined, the Principle of Natural Justice was violated. 3) No Circular or Notification has been brought on records to show that any permission from any higher authority was required before the respondent could take the official jeep for carrying out his official duties. 4) As an Incharge of the office, the respondent indisputably was entitled to use the government vehicle as also the arms. 5) In view of the fact that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding only related to administrative lapses on his part, it could have been initiated long back. Why was it initiated after a period nine years has not been explained. On a query made by us, the learned Additional Solicitor General, submitted that the department must have been waiting for the outcome of the criminal case. If that is so, it was expected that the evidence would have been adduced in the criminal proceeding to establish that the misuse of the jeep and the official revolver as also visiting the border area by the respondent formed part of conspiracy. The identity and the activity of the private person, who was found in the company of the respondent, should have been investigated by the competent authority, particularly when respondent was working in the Intelligence Department. 20. Whether incidental or ancillary to the issue which arose in the departmental proceeding, we must place on record that the Department of Customs of the Union of India having examined the entire question, they found the respondent innocent. As trans-border smuggling was the common theme both before the said authority as also in the criminal court, the department concerned was ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond anybody's comprehension. He was not the prosecutor. A Presenting Officer had been appointed. The Inquiry Officer could not have taken over the job of the Presenting Officer, particularly when he was a superior officer. Valid and sufficient reasons have not been assigned by the Inquiry Officer in this behalf. His finding that the respondent should have informed his superior who was available at the close point, is contrary to the evidence of Mool Singh. According to him, the practice followed by the officers similarly situated was to take the goods found abandoned to the Customs Department and to the police station. 24. It has been suggested before us that the charges against the respondent in the criminal case and the departmental proceeding were different. However, we fail to understand what sort of public duty the respondent was expected to perform when he was intercepted by the police in a jeep which was driven by Bhoor Singh, a notorious smuggler who had been detained under MISA. If the conduct of the respondent did not cause any embarrassment to the department in the year 1983, how, after exoneration by the Customs Authorities and acquittal by the criminal cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed showing bogus issues in the records, falsification of accounts, submission of defective accounts, tampering of records, manipulation of accounts and records etc. Thus, the respondent herein was proceeded against for quite different charges and on different sets of facts before the Court of Chief Judicial Magistrate, on the one hand, and before the Departmental Enquiry on the other." It was, thus, a case where the charges were different. 27. In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and others : (2005) 7 SCC 764 this court opined that acquittal of a delinquent by a criminal court would not preclude an employer from taking action by the disciplinary authority, if it is otherwise permissible. Such a departmental proceeding, however, cannot be initiated mala fide . It must be conducted in accordance with law. An acquittal of a delinquent ipso facto may not absolve him from undergoing disciplinary inquiry. However, where the charges are absolutely identical, ordinarily the same would not be taken resorted to. We may notice that in Ajit Kumar Nag (supra) the order of dismissal was found to have been legally proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amaladevi Agarwal v. State of W.B. ]. 13. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed. " 29. It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal court has given a positive finding that the prosecution has not been able to prove that the accused had misappropriated the goods. His visit to the border for discharging his duties did not tantamount to misuse of the post or the authority. No evidence has been presented that he did not have the authority to go to the border side on official duties and even the department had not forbidden him from going to that place. It was held that as misappropriation of the property has not been proved, the question of any criminal conspiracy did not arise. No evidence had been adduced to bring home the charge of criminal conspiracy, which is an independent crime. 30. Respondent was found to have been carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." In this case, evidence of Mool Singh is totally against the department. He was not cross-examined. It was not held that he had deposed falsely. 34. For the abovesaid reasons, there is no infirmity in the impugned judgment. The appeal fails and is accordingly dismissed. 35. Before parting, we may, however, notice that the respondent was reinstated in service. However, after the order of stay was granted by this Court on 27 th March, 2006, his services had again been terminated. He is, therefore, directed to be reinstated forthwith with all c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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