TMI Blog2017 (7) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of action. The result of one proceeding does not have a bearing on the other proceedings. The CESTAT might have found that the respondent did not collude with the importer and hence was not liable of a penalty under the Customs Act, 1962 but that does not mean that he is not guilty of misconduct, maintaining absolute integrity and devotion to duty as per Rule 14 of the CCS (CCA) Rules. Whether the non-supply of the original Bill of Entry did in fact violate the principles of natural justice and cause prejudice to the respondent? - Held that: - the Disciplinary Authority and the Appellate Authority did not find any prejudice to have been caused due to the non-supply of the original Bill of Entry. It is well settled law that the technical rules of evidence do not apply to a departmental enquiry and the doctrine of ‘proof beyond reasonable doubt’ has no relevance in a departmental enquiry. All that is needed to establish misconduct is preponderance of probability and some material on record to prove the same. In disciplinary proceedings, a Disciplinary Authority has to see whether after going through the material on record and evidence, a reasonable and prudent man would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be imposed on him. Prior to this show cause notice he was put under suspension vide order dated 15.01.1999. The show cause notice was adjudicated upon by the Commissioner of Customs, New Delhi who vide order dated 19/25.08.1999 imposed a penalty on the applicant but the same was set aside by the Custom, Excise Service Tax Appellate Tribunal (in short CESTAT ) vide order dated 12.07.2000. The suspension order was revoked vide order dated 18.08.2000 and the respondent re-joined his duties. 3. The respondent was also charge-sheeted under Rule 14 of the CCS (CCA) Rules, 1965 vide memo dated 01.08.2000 on the same charge i.e. false examination report entered by him with respect to Bill of Entry No.724870 dated 21.12.1998. On denial of the charges by the respondent, an inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was conducted by the Inquiry Officer who in his report concluded that the charges levelled against the respondent were not found to be proved. The Disciplinary Authority however, disagreed with the findings of the Inquiry Officer and imposed the penalty of reduction of pay by two stages in the pay scale of ₹ 6500-10500 for a period of two years during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquittal in a criminal case arising from the same cause of action. He places reliance on S. Govinda Menon v Union of India Anr. AIR 1967 SC 1274 (paragraphs 7 and 9) and Om Prakash v Delhi Society for Prevention of Cruelty of Animals Ors. 2011 IX AD (DELHI) 741 (paragraph 11). 8. Per contra, Ms.Vidushi Shubham, learned counsel for the respondent had argued that there is no infirmity or illegality in the order of the Tribunal and therefore it does not warrant any interference. 9. The learned counsel for the respondent had argued that the Tribunal was correct in coming to the conclusion that prejudice was caused to the respondent as the original Bill of Entry on which the departmental proceedings have been rested, was neither made available to the respondent nor it s copy was produced during the enquiry as the same was not traceable. Reliance is placed on the judgment of the Apex Court in Kuldeep Singh v The Commissioner of Police Others (1999) 2 SCC 10 (paragraph 36 and 37) 10. The learned counsel for the respondent had further argued that once the respondent was acquitted of all charges under the Customs Act, 1962, departmental proceedings under the CCS (CCA) Rules c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case, departmental proceedings could not be continued and the order of removal could not be passed. (Emphasis supplied) 14. The Hon ble Supreme Court while again re-iterating the ratio laid down in South Bengal State Transport Corporation s case (supra) in Sama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CEGAT has set aside the penalty imposed upon him under the Customs Act in this case which was booked under the Customs Act and he was made a party in the same. In this context, I find that the proceedings under the Customs Act are different from the proceedings under CCS (CCA) Rules, in as-much-as the proceedings under the Customs Act pertain to irregular import and involvement of the officer in fraudulent import whereas the proceedings under the CCS (CCA) Rules, 1965 pertain to conduct of the officer. Thus both the proceedings are different in nature, under different set of Rules and have different implications and there is no bar in conducting both the proceedings side-by-side at the same time. The result of one proceedings does not have bearing on the other proceedings. CEGAT might have found that he was not colluding with the importer and hence not liable to penalty under the Customs Act but that does not mean that he is not guilty of misconduct and maintaining absolute integrity and devotion to duty. 15. The contention of Shri Sharma that on the day of incidence he was allotted the bills of entry ending with digits of 2 3 and the bill of entry under dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the original Bill of Entry. In his defence submitted before the Inquiring Authority on 29.10.2001 the respondent had, inter alia, stated that in the absence of the original Bill of Entry there is no proof that the impugned Bill of Entry was marked to him and processed by him. He stated that unless he had been shown hard copy of Bill of Entry No.724870 dated 21.12.1998, he cannot say whether he examined the consignment on 21.12.1998 at 04:43 PM. He stated that in the daily working sometimes it is not possible to keep the Password a secret. He stated that he did not change his Password since he joined Import Shed as he is not much aware of computer working. He stated that he did not reveal his Password intentionally but many people are around when he feeds the report and anybody can see the Password with a little effort. He stated that he cannot say if his Password has been misused unless he is shown the hard copy with his signatures as compared to report on EDI system. The respondent had not denied that the entry relating to the impugned Bill of Entry was never made through his system. He had taken the defence that the entry was made through his computer system using his login ID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the same of argument. I am afraid that the basis sanctity behind computer operation will be lost. The entire computer operations would carry no meaning as nobody would be responsible for the commands given through his password and the plea of Leakage of password can be taken as and when any wrong doing is detected. 20. Therefore the Disciplinary Authority and the Appellate Authority did not find any prejudice to have been caused due to the non-supply of the original Bill of Entry. It is well settled law that the technical rules of evidence do not apply to a departmental enquiry and the doctrine of proof beyond reasonable doubt has no relevance in a departmental enquiry. All that is needed to establish misconduct is preponderance of probability and some material on record to prove the same. The Hon ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 while laying down the standard of proof required to prove the guilt of a charged officer in Disciplinary Proceedings held as under: 37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. 22. The Hon ble Supreme Court in K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 while laying down that the scope of principles of natural justice is dependent on the facts and circumstances of each case held that: 31. Wade in his Administrative Law, 5th Edn. at pp. 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficiently able to rebut this finding, then the order of the Disciplinary Authority would be good in the eyes of law. 28. The Hon ble Supreme Court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 while laying down the scope of judicial review of departmental enquiries held as under: 12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to discipl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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