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Judgment
Per: Justice M.G. Sewlikar, Member (J)
The applicant has assailed the Order of the Disciplinary Authority dated 30th April, 2008 whereby the applicant has been compulsorily retired, Order of the Appellate Authority and of the Revisional Authority. The Revisional Authority modified the Order of the Disciplinary Authority and maintained the Order of the compulsory retirement but modified the order of 80% of pension to full pension.
Brief facts of the case are that a chargesheet came to be served on the applicant on 06th June, 2003 alleging that on 25th December, 2002, a holiday, on his own, without any authority he had stopped one three-wheeler tempo at about 19.00 hrs, near the godown of M/s Jajodia Polyesters P. Ltd., situated at Godown No.1, Drupad Chaya Compound, Poorna Village, Bhiwandi (Article-I).
Another charge vide Article-II was that the applicant while doing so, posed himself as Inspector Pawar/Rao of Central Excise, Kalyan-I Division (respondent no. 9).
He was further charged with demanding money from Shri Madhukant Jajodia (Rajubhai) (son of the owner Shri Sushil Kumar Jajodia) as an illegal gratification. The applicant again visited the godown in the 01st week of January, 2003 and asked for illegal gratification.
Vide Article-IV, the applicant was charged that he abused and threatened the godown keeper and directed the driver to take the said vehicle to a different place i.e. on the road opposite to M/s Kesarwani Zarda factory, Poorna Village, which was near to the godown, to show as if he had intercepted the said vehicle, for verification. He also manhandled/threatened and abused Shri Madhukant Jajodia (Rajubhai) [son of the owner Shri Sushil Kumar Jajodia] thereby damaging the personal dignity of the individuals.
In the statement of imputation, it is alleged that the applicant vide his letter dated 26th December, 2002 (in Marathi language), addressed to the Deputy Commissioner, Central Excise, Kalyan I Division, stated that on 23rd December, 2002 and on 25th December, 2002, his (applicant's) informant told him that some non-duty paid imported fabrics were to be cleared in a three wheeler tempo from a godown, that he himself had gone to the place at 05.00 and at 07.00 and had stopped one three wheeler tempo near Preeti Petrol Pump, Poorna Village, that he Abhishek Digitally signed by Abhishek asked for the documents from the driver, who could not produce the same to him, thereafter, he directed the driver to take the tempo to the godown and he informed the Additional Commissioner about the incident.
It is the case of the applicant that he had information from some tempo driver (informer) that imported goods/fabrics were going to be taken out from godown at Poorna Village, Bhiwandi without paying the duty on the goods as 25th December, is a public holiday on account of Christmas. The applicant informed his Senior Mr. M.S. Pawar, respondent no. 9 and M.G. Menon, respondent no. 10 about the information received form the informer. Both of them did not remain present but instructed the applicant on phone to visit the site along with the constable available and report to them if there is anything suspicious he found at the site.
Accordingly, inquiry was conducted. Initially, Inquiry Officer participated in the inquiry. Thereafter, he remained absent and did not cross-examine any witness despite giving several opportunities to him. The Inquiry Officer submitted the inquiry report holding the applicant guilty. The Disciplinary Authority agreed with the report of the Inquiry Officer and imposed the punishment of Compulsory Retirement with immediate effect and that he shall be entitled to 80% of the full compensation pension and full gratuity admissible to him on the date of his retirement.
Applicant preferred appeal against this order. Appellate Authority confirmed the Order of the Disciplinary Authority. Applicant preferred revision against the said Order. Revisional Authority confirmed the order of Compulsory Retirement but modified the order of Disciplinary Authority as regards pension and Revisional Authority awarded full pension from the date of compulsory retirement. All these orders are impugned in this OA.
It is alleged by the applicant that chargesheet was preceded by the FIR lodged by Shri Madhukant Jajodia on the basis of which Regular Criminal Case No.674/2013 was instituted against the applicant in the Court of Judicial Magistrate, First Class, 3rd Joint Court, Bhiwandi under Sections 384, 504 r/w 34 of IPC and under Section 166 of Indian Penal Code.
The applicant came to be acquitted in the said Criminal Case vide judgment and order of the Judicial Magistrate, First Class, 3rd Joint Court, Bhiwandi dated 24th June, 2005.
It is alleged by the applicant that Annexure-III of charge memorandum contains list of documents by which Articles of charge are framed. But the Memorandum does not provide statement of respondent no. 10, respondent no. 9 and respondent no. 6 and also of Shri Madhukant Sushil Jajodia and further the prime witness of the tempo driver. Therefore, it can be easily inferred that the Departmental inquiry was an afterthought just to cook up the false story against the applicant. It is contended that the applicant always refused to make wrong entries in the log book. He used to make true and actual entries of the vehicles used by his superiors. It is further contended that he was working as driver with Additional Commissioner, late Mr. S.N. Thappa during whose tenure at Sekadi Bunder and Shrivardhan Bunder, RDX was downloaded and used in 1993 Bombay Blast Series. In the Mumbai Bomb Blast Series, the CBI had confiscated the log books for investigation. The applicant was also interrogated by the CBI in investigation of Mumbai Serial Bomb Blast case occurred on 13th March, 1993 and had given statements against the concerned officers of Central Customs Department. Therefore, the officers nurtured grudge against the applicant. The applicant is a witness in some cases against the Officers of the Department and for this reason, the applicant has been implicated in this false case.
The applicant was placed under suspension vide order dated 24th March, 2003.
It is further contended that during inquiry, three officers were examined as witnesses, namely, M.S. Pawar, Superintendent, Central Excise Building, Shri Sushil Kumar Jajodia, Director of M/s. Jajodia Polyster Private Ltd. and Shri M.V. Nathu, Chief Commissioner Officer, Central Excise Building, Churchgate, Mumbai. The applicant was not allowed to cross-examine these witnesses
by the Inquiry Officer. There is no evidence to suggest that illegal gratification was demanded and the applicant had abused and threatened and intentionally insulted Shri Madhukant Jajodia and the godown keeper. The applicant was not given opportunity to cross-examine the witnesses even after repeated requests. He was not provided with relevant documents.
The applicant has alleged that the day-to-day order sheets clearly show that the inquiry was held even claiming to be ex-parte. The applicant was not given any notice of hearing of examination the witness. He was purposely kept away from the inquiry proceedings.
The inquiry officer without there being any evidence, held the applicant guilty. On these allegations, the applicant has filed this OA seeking following reliefs:-
“8.(a) This Hon’ble Tribunal will be pleased to call for the records which led to the passing the impugned Order dated 30.04.2008, 04.02.2009, 25.08.2010 and impugned Chargesheet dated 6.6.2003 and after going through its legality, propriety and constitutional validity be pleased to QUASH and SET ASIDE the same.
b)This Hon’ble Tribunal will be pleased to Order and direct the Respondents to reinstate the Applicant with full consequential benefits of arrears of pay/salary, seniority, promotions if any, and other service benefits to which he would be have been otherwise be entitled to.
c)Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case.
d)Cost of this Original Application be provided for."
The respondents filed their reply. Respondents contend that the applicant has unnecessarily connected the Bombay Blast Case with his memorandum of charge. The contention of the applicant that he was authorized by respondent nos. 9 and 10 to intercept the three-wheeler tempo is false. No officer would authorize the applicant, who was driver to intercept the three-wheeler tempo. The chargesheet is based on true incident which has been proved to be a misconduct. None of the officers had any grudge against the applicant.
They further contend that the statement of all the witnesses during the course of proceedings were considered relevant by the Inquiry Officer. The cross-examination of witnesses was not considered essential by the Inquiry Officer.
They further contend that principles of natural justice have been scrupulously followed. Opportunity to cross-examine the witnesses was given to the charged officer but he did not avail it. The applicant has failed to participate in the inquiry proceedings and take inspection of documents despite communication of date and time of hearing number of times. Each and every time, the applicant was informed by the Presenting Officer about the date. The respondents, therefore, prayed for dismissal of the application.
We have heard learned counsel for the applicant and learned counsel for the respondents.
Learned counsel for the applicant submitted that the Inquiry Officer did not permit the applicant to cross-examine the witnesses. He further submitted that the applicant has requested the file containing:-
preliminary inquiry report, report submitted by Superintendent, Central Excise (Vigilance) Thane-I who has recorded the statement as per Annexure-III.
Divisional File of Kalyan-I/Th-I said to be containing the description, marks on the bundles with reference to the Bill of Entry together with the compliance Report submitted to the Deputy Commissioner, Central Excise, Kalyan-I Division by the Superintendent, Central Excise, (P) Kalyan-I/Witness.
Statement/ Report given by Shri Patkar, Inspector, Central Excise, Kalyan (CPU) who was directed by Deputy Commissioner, Central Excise, Kalyan-I to accompany Shri Menon, Superintendent.
X.T.I diaries of the officers.
He had also demanded copy of the Complaint letter of Shri Jajodia, the godown keeper, and the tempo driver who was present on the spot. He had also asked for complaint letter of Shri. Sushil Kumar Jajodia and Shri Madhukant S. Jajodia but Inquiry Officer did not supply them on the ground that Rules do not provide for the same. He further submitted that the Inquiry officer has held that the applicant had written a letter to the effect that he had Abhishek Digitally signed by Abhishek gone to the spot and had stopped one three wheeler tempo at 19:00 hrs on 25th December, 2002 on holiday and that he informed the Additional Commissioner after the incident and his informant had informed him about the non duty paid goods on 23rd December, 2002. Learned counsel contended that there is no such admission and he called upon the respondents to produce the original record. Accordingly, this Tribunal called upon the respondents to produce the original record of inquiry vide order dated 02nd July, 2025. He submitted that the said record is still not produced. He further submitted that the Godown Keeper's statement has not been recorded. The number of the tempo is also not available. This clearly shows that the respondents have falsely implicated the applicant.
Learned counsel for the respondent submitted that the applicant was given full opportunity to cross-examine the witnesses but he did not avail it. The Inquiry Officer's report clearly mentions as to how the applicant was informed by the Presenting Officer about the date of inquiry and how the applicant remained absent. He submitted that the record could not be produced despite the Abhishek Digitally signed by Abhishek best efforts on his part. He submitted that the inquiry report shows that the applicant had on his own stopped the tempo, posed himself as Inspector Pawar and Rao and demanded illegal gratification. He was afforded full opportunity to cross examine the witnesses, but he did not avail it.
We have given thoughtful consideration to the submissions made by the learned counsel for the applicant and learned counsel for the respondents.
We have gone through the Inquiry Report and the Order of the Disciplinary Authority with the assistance of both the learned counsels.
It is pertinent to note that cross-examination is the right of the charged officer. Denial of the same vitiates the inquiry. The applicant has specifically alleged in the OA that he was not provided with the opportunity to cross-examine the witnesses by the Inquiry Officer and he was kept away from the inquiry. We perused the Inquiry Report with the assistance of the learned counsel for the respective parties. In para 9.5 of the Inquiry Report, the Inquiry Officer Abhishek Digitally signed by Abhishek has observed that the applicant had requested for the supply of complaint letter of Shri Sushil Kumar Jajodia and Shri Madhukant S. Jajodia and other documents. The Inquiry Officer rejected this request on the ground that CCS rules do not provide for the supply of the documents and the charged officer has neither indicated the elaborate reasons for the supply of the above-mentioned documents nor explained the same during the course of oral proceeding whenever he attended the same.
It is pertinent to note that the chargesheet has been filed on the complaint of Shri Madhukant S. Jajodia. Article-III states that Shri G.H. Mali i.e. applicant demanded money from Shri Madhukant S. Jajodia as an illegal gratification. Therefore, these documents were required to be furnished to the applicant.
Learned counsel for the applicant vehemently submitted that no opportunity was given to the applicant to cross-examine the witnesses. To contradict this, learned counsel for the respondents invited our attention to the Inquiry Officer's Report stating that the Presenting Officer had informed the applicant about the next date but the applicant remained absent every time by sending letters. Learned counsel for the applicant submitted that record will show the truthful position. Therefore, vide order dated 02nd July, 2025, the respondents were directed to produce the original record of inquiry. The respondents have failed to produce the original record of the inquiry despite giving ample opportunities. Therefore, the adverse inference that will have to be drawn that the respondents did not produce the record as it would have shown that no opportunity of cross-examination of witnesses was given to the applicant. In the absence of record, we have to accept the contention of the applicant that he was not permitted to cross-examine the witnesses.
The Inquiry Officer has laid much stress on the admission of the applicant that the applicant has admitted to have intercepted the vehicle. This is what the Inquiry Officer has observed in the inquiry report:-
"It is to be noted that the Charged officer Shri Mali vide his letter dated 26.12.2002(in Marathi language), addressed to the Deputy Commissioner, Central Excise, Kalyan-I Division, stated that on 23.12.2002 and on 25.12.2002 his informant had told him that some non-duty paid imported fabrics were to be cleared in a three wheeler tempo from a godown, that he himself had gone to the place at 05.00 and at 07.00 had stopped one three wheeler tempo near Preeti Petrol Pump, Poorna Village, that he asked for the documents from the driver, who could not produce the same to him, that, he thereafter directed the driver to take the tempo to the godown and then he informed the Additional Commissioner about the incident.”
In the absence of record, it cannot be ascertained whether the applicant had written any such letter.
It is pertinent to note that the statement of the godown keeper is not recorded. The explanation given by the officer in vigilance section is that the statement of tempo driver could not be recorded as details of registration no. of the tempo were not available and during the course of the inquiry, the whereabouts of godown keeper could not be found. It is the prosecution case that the applicant had demanded money from godown keeper and posed himself as the respondent no. 9, M.S. Pawar. Thus, the position that emerges is that the Officers from vigilance section did not get the details of the registration no. of the temp. No reasons are assigned for not getting the details of registration no. of tempo and that cannot be the reason for not recording the statement of the tempo driver and of the godown keeper. In these circumstances, inquiry gets vitiated for non-following of principles of natural justice.
Cross-examination is an integral part of principles of natural justice. By not producing the record, the inference that has to be drawn is that the opportunity was not given to the applicant for cross-examining the witnesses and that is the reason, the respondents did not produce the original record of inquiry. Since the principles of natural justice have been violated, the inquiry gets vitiated. Hence, the Order:-
Application is allowed.
The Order of the Disciplinary Authority dated 30th April, 2008, Appellate Authority dated 04th February, 2009 and Revisional Authority dated 25th August, 2010 are set aside.
Since the applicant has superannuated, he cannot be reinstated.
The applicant is entitled to all the consequential benefits except salary.
Applicant is entitled to 40% of the salary from the date of Compulsory Retirement till superannuation.
Pending MAs, if any, stand disposed of. No costs.