B.B. Singh vs Union Of India & Ors.

Hon’ble Mr. Justice Om Prakash-VII, Member (J)

The present O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-

The brief facts of the case are that applicant while working as Inspector, Custom Circle, Pilibhit, on receiving a source information, conducted preventive check along with preventive team on 25.1.2007. In the process of preventive check, applicant along with his team travelled by Private Vehicle (170 Kms and Auto 6 Kms) and filled T.A. claim for the above. Thereafter, a proceeding under the Customs Act was initiated to ascertain the genuineness of the seizure. The applicant was charge sheeted vide memo dated 8.4.2010 which contains four charges. Applicant denied the charges. Enquiry was conducted and enquiry officer submitted enquiry report. Copy of the enquiry report was supplied to the applicant through letter dated 21.10.2011. Applicant submitted reply against the enquiry report. Disciplinary Authority effected service of second stage advice of the Chief Vigilance Officer dated 1.2.2012 and applicant was offered to submit representation against the same. Chief Vigilance Officer has not recorded reason in its agreement with the recommendation of the Disciplinary Authority for imposition of major penalty against the applicant. However, vide impugned order dated 4/9.4.2012 disciplinary authority punished the applicant with a major penalty of reduction of two stages in the time scale of pay i.e. pay band Rs. 9300-34800 from the present pay of Rs. 19900/- plus grade pay Rs. 5400/- per month. Appeal preferred on 11.5.2012 was also dismissed vide order dated 4.4.2013.

Per contra, learned counsel for the respondents submits that as per the Memorandum of charge sheet dated 8.4.2010, the applicant Inspector, while functioning as Inspector Custom Circle conducted preventive check along with staff on 25.1.2007 in the area which was beyond the jurisdiction of customs Circle, Pilibhit. 21 number of cattle were seized and auctioned. For releasing the above detained cattle, applicant demanded Rs. 25000/- and on receipt of the amount, he released them illegally. Applicant undertaken the journey on 25.1.2007 to the place of Seizure by a black colured Bolero jeep but in his T.A bill he mentioned the mode of conveyance as bus and auto. When illegal facts came to the knowledge of higher officer, charge sheet was issued and after giving opportunity, punishment order was issued vide order dated 4/9.4.2012. Appeal submitted by the applicant was also rejected with modification in punishment.

Heard the learned counsel for the parties.

Learned counsel for the applicant submitted that charges leveled against the applicant is for conducting preventive check beyond the jurisdiction of Custom Circle, Pilibhit. Inquiry officer in its enquiry report found the charge No. 1 proved as regards preventive check beyond the jurisdiction of Custom Circle, Pilibhit. As regards detention of 50 cattle, charges are not proved. As regards claiming false T.A., charge is proved. Learned counsel for applicant argued that merely because the applicant exceeded few kilometers beyond his jurisdiction, he cannot be said to have committed misconduct. It is further argued that an officer who is chasing smugglers, is not supposed to allow them to escape from the preventive check even if they crossed the outer limit of the jurisdiction. Learned counsel for the applicant further argued that punishment awarded to the applicant is harsh and is liable to be quashed.

Learned counsel for the respondents argued that applicant has conducted the preventive check beyond the Pilibhit Circle and travelled by a private car and submitted false T.A. Bill. Charges leveled against the applicant found proved by the enquiry officer and applicant participated in the enquiry. After considering the representation of the applicant against the enquiry report, punishment was awarded to the applicant as per rules. Hence there is no illegality in the impugned order.

We have considered the rival submissions and have gone through the entire record.

From perusal of the record, it is evident that charges of the applicant is for preventive check beyond the jurisdiction. The contention of the applicant that an officer who is chasing smugglers, is not supposed to allow them to escape from the preventive check even if they crossed the outer limit of the jurisdiction, is acceptable because during chasing the smugglers, looking to the outer limit of the jurisdiction is not possible. Appellate authority in its order dated 4.4.2013, however, uphold the order dated 9.4.2013 passed by the disciplinary authority but he stated that in my opinion, the quantum of penalty imposed upon the charged officer is not commensurate with the charges proved and needs to be diluted to the extent that after the period of reduction of two years, such reduction will not have the effect of postponing his future increments of his pay, i.e. the penalty will be without any cumulative effect. Accordingly, modified the order of disciplinary authority. It is also evident that applicant has no role to play in auction. It was only Smt. Meena Dixit, Superintendent, who has violated the provisions of auction proceedings and applicant cannot be held responsible for the same.

In our opinion, only for the preventive check, punishment of reduction by two stages in the time scale of pay for a period of two years, which was modified by the appellate authority to the extent that after the period of reduction of two years, such reduction will not have the effect of postponing his future increments of his pay, i.e. the penalty will be without any cumulative effect is shocking disproportionate to the charges leveled against the applicant.

As far as quantum of punishment imposed upon the applicant is concerned, enquiry report as well as order passed by the disciplinary authority itself reveal that charges for gratification was not found proved. Irregularity caused in auction proceeding can also not be attributed to the applicant. Only charge proved against the applicant is that applicant has exceeded territorial jurisdiction in chasing the smugglers without informing to the local head.

It is settled principle of law that scope of judicial review in the matter of imposition of penalty in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. It is also settled principle of law that a court of a Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. The sum and substance of the factors ought to have been taken while imposing the punishment in disciplinary proceedings:-

If the punishment imposed upon the applicant is compared with the facts and circumstances of the case of the present matter and also with the evidence available on record, the finding of the disciplinary authority as well as appellate authority imposing penalty as disclosed hereinabove upon the applicant is not commensurate with the act/misconduct said to have been leveled on the charged officer. It is pertinent to mention here that authority who are chasing the offender, it is not supposed to allow them to escape from the preventive check even if they crossed the outer limit of the jurisdiction. Therefore, O.A. is liable to be allowed.

Accordingly, O.A. is allowed. Impugned order dated 4/9.4.2012 and 4.4.2013 are quashed. The matter is remanded to the disciplinary authority to pass a fresh order, after considering the gravity of charge leveled against the applicant, after providing proper opportunity of hearing to the applicant.

Misc. Applications pending if any, in this case, shall also stands disposed off.

There shall be no order as to costs.