9911796707
TMI Blog2019 (12) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... posing a penalty of reducing the pay of the petitioner by three stages for the period of one year, without cumulative effect, and the order in appeal dated 24th September, 2014, dismissing the appeal there-against, came to be dismissed. 3. The facts necessary for the determination of this petition can be summarised as under: (a) The petitioner was recruited as Appraiser (Customs) in the Civil Services Examination, 1996. On 5th December, 2006, the petitioner was posted at Mumbai Docks. He was performing duty at STP (one of the node/point of Mumbai Docks). The consignment under the Bill of Entry No.727840 dated 4th December, 2006, was cleared by the petitioner through Custom House Agent ("CHA"), M/s. A. Abba & Sons, CHA No.11/396, in the name of M/s. Ratan Enterprises, Gujarat. The goods in the consignment were declared to contain Tooth Brushes, Baby Diapers, Plastic bowls etc. of total declared value of Rs. 3,03,359/-. (b) Post clearance, the officers of the Directorate of Revenue Intelligence (DRI), Mumbai Zone, intercepted the truck bearing No. MH-43 E-1345 outside the dock premises. The Bottle Seal No.160620, BAYLINES of the shipping line affixed at the port of loading, Duba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Report of having "Opened and examined 40 pkgs in the present of CHA" and had generated the fallacious documents to make an impression that the consignment had been examined and had given the out of charge. ARTICLE OF CHARGE - III Shri. S. S. Gujar, Appraiser, with a deliberate and malafde intention, to help S/Shri Mohammed Ghouse Karim, Imran Chasmawala, importers and Shri Ramesh Pandey, employee of CHA M/s. Abba & Sons (No.11/396) and to avoid payment of proper Customs duty, acted dishonestly, for illegal monetary consideration and to cause loss of revenue to the Government Exchequer and wrongful gain to the importers. He did not deliberately detect the undeclared imported goods which were concealed in the said Container No.IALU4553921 to cause loss of Revenue in exchange of his own monetary consideration. (e) The disciplinary proceedings commenced. Mr. Bidhan Chandra, the then Deputy Commissioner of Customs, was appointed as Inquiry Officer to enquire into the aforesaid charges framed against the petitioner. The Inquiry Officer, after the conclusion of inquiry, submitted the report. The Inquiry Officer held that Charge-I and Charge-III, above, were not proved. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersuaded to dismiss the appeal and confirm the finding of misconduct as well as the penalty imposed by the disciplinary authority on the petitioner, by order dated 24th September, 2014. The Appellate Authority recorded that the act of the petitioner in attending to a consignment not under his jurisdiction, feeding a false examination report without examining its contents and ordering "out of charge" squarely fell in the category of gross misconduct or gross dereliction of duty and was in breach of the CCS (Conduct) Rules, 1964. (g) The petitioner challenged the orders of the disciplinary authority as well as the appellate authority by preferring Original Application No.14 of 2015 before the Central Administrative Tribunal. A Bench of tribunal, by the impugned judgment and order, found no reason to interfere with the orders impugned before it. The tribunal was of the view that neither the conclusion arrived at by the disciplinary authority was unjustified nor the penalty imposed by the disciplinary authority disproportionate to the proved misconduct. Thus, the tribunal, in view of the limited power of judicial review, was persuaded to dismiss the application. 4. Being aggrieved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority could not have disagreed with the findings of the Inquiry Officer as regards "misconduct". The Tribunal lost sight of this crucial aspect and misdirected itself in concentrating more on the proportionality of the penalty, urged the learned Counsel for the petitioner. 8. Per contra, Mr. Shetty, the learned Counsel for the respondents, stoutly submitted that the finding of the disciplinary authority is impeccable. The facts which reflect the misconduct of the petitioner are rather indisputable. One, the petitioner gave an out of charge order for a consignment which was not within his jurisdiction. Two, the petitioner gave the out of charge order without examining the consignment, which was the primary duty of the petitioner. Three, the petitioner made false endorsement that he had examined 40 packages out of the consignment. Four, the falsity of the report of physical examination was borne out by the fact that the consignment had unbroken bottle seal of the port of import. Five, on examination of the consignment by the DRI, 4,959 wrist watches worth of Rs. 1,09,36,000, were found concealed therein. In this factual background, according to Mr. Shetty, the lack of devotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer as well. The controversy revolves around the proof of item (ii), namely, the petitioner calculatingly fed the examination report to create false document. In view of the exoneration of the petitioner of Charge-I and Charge-III, and the material on record which indicates that there was neither any conspiracy nor the petitioner had any inkling of the contents of the consignments which were found to have been imported by evading the customs duty, the Inquiry Officer was of the view that item (ii) above, was not proved. 13. The Inquiry Officer on the aspect of the alleged act being a calculated one held that the said head of Charge-II emanates from Article of Charge-I. Once it is found that there was no element of conspiracy or intent to favour the importers, the said head of Charge-II also falls. Secondly, on the aspect of the preparation of false report, the Inquiry Officer was of the view that if the petitioner desired to create a false document, it would have been in conformity with the norm of examination of at least 5% of the container and then the petitioner would have made an endorsement to the effect that he had examined 5% of the declared 1407 cartons and not 40 packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or omission which is in breach of the prescription of conduct amounts to misconduct. Whether the complained act or omission amounts to misconduct is thus required to be judged in the context of the nature of such act or omission, the circumstances in which it occurred and its impact. 17. A profitable reference in this context, can be made to the judgment of the Supreme Court in the case of State of Punjab and others vs. Ram Singh Ex-Constable (1992) 4 SCC 54.. In the said case, the respondent therein was dismissed from service on the charge that he was found roaming at the bus stand sporting service revolver, heavily drunk. It was urged on behalf of the respondent that taking alcoholic drink as such did not amount to misconduct. After referring to the definition of misconduct in the Law of Lexicon, the Supreme Court expounded the import of the term misconduct in the following words. "5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus :- "A transgression of some established an definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order." (emphasis supplied) 18. In the context of the thrust of the submission on behalf of the petitioner that there was no element of means rea in the act of the petitioner of issuing out of charge order and, thus, it would not amount to misconduct, it may be advantageous to make a reference to the judgment of the Supreme Court in the case of Union of India and others vs. J. Ahmed (1979) 2 SCC 286. The Supreme Court adverted to the general connotation of the term 'misconduct', especially in the context of disciplinary proceedings. The observations of the Court in paragraphs 10 to 12 are instructive. They read as under: "10. It would be appropriate at this stage to ascertain what generally constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty. 11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand shah v. Manager, Ahmedabad Co- op. Department Stores Ltd. [(1978 19 Guj LR)]. But in any case, failure to attain the highes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the case, it is pertinent to note that the cleavage in the opinion of the Inquiry Officer and the disciplinary authority was on the point of the petitioner having calculatingly fed and generated fallacious (false) document - item (ii) extracted above. The word "calculatingly" covers in its fold a mental element. It is impregnated with an idea of deliberateness. It implies that the action was taken after taking into account the foreseeable consequences thereof. The element of an intentional and deliberate act, therefore, was part of Charge-II attributed to the petitioner. 22. The disciplinary authority was of the view that the act was done "calculatingly" was borne out by the fact that the petitioner did not realise that he was attending to the unauthorised documents at three stages i.e. at the time of feeding examination report, at the time of giving out of charge order in the system and at the time of signing Out of Charge Order No.12911 for the said bill of entry. 23. The defence of the petitioner was that he issued the out of charge order on account of an inadvertent mistake as Rishikesh Shahi (DW-3), the employee of CHA, had tendered the bill in question along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this view for reasons more than one. 26. Firstly, the failure of the department to bring home the Charge-I to the petitioner dismantles the substratum of the charge as regards the ill motive on the part of the petitioner. Secondly, the failure to establish the charge of conspiracy against the petitioner snaps the link between the petitioner and other persons, who imported the goods by evading the customs duty. Thirdly, the fact that Charge-III could not be established leads to an inference that the act of the petitioner was not coupled with a deliberate mala fide intent to assist the importers and the exoneration of the petitioner from the said Charge-III leads to further inference that the petitioner did not give out of charge order for unlawful monetary or other extraneous consideration. Fourthly, if all these elements reflecting upon the state of mind of the petitioner are completely and thoroughly ruled out, then it would not be permissible to introduce the same element of deliberateness and willfulness by holding that the act was calculated one. Lastly, it is imperative to note that even the appellate authority recorded an express finding that the material on record negated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
