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Judgment
Umesh Gajankush, Member (J)
In the present group of Original Applications, all the applicants have challenged the common order dated 04.09.2020 (Annexure-A/1) in each original application and similar question of law has been raised in all these Original Applications and the learned counsel for the parties have made their submissions on the same question of law and therefore all the Original applications are being decided by a common order.
That for the sake of brevity, the facts stated in Original Application No.254/2021 i.e. Pankajkumar N. Chaudhari vs. Union of India are taken into consideration.
The applicant being aggrieved by communication vide letter No.F.No.II/39(Vig)37/2013 dated 04.09.2020 (Annexure-A/1) under Rule 14 of the CCS(CCA) Rules issued by the respondent No.5 has filed the present Original Application. According to the applicant, by the impugned order his fundamental right has been abrogated by the department by passing the order dated 07.09.2020 (Annexure A/1 Colly) of appointment of Inquiry Officer (for re-inquiry), and the Presenting Officer.
According to the applicant, in pursuance of the charge memo dated 08.06.2015, inquiry proceedings were initiated and the Inquiry Officer completed the inquiry on 19.01.2017 by arriving at the conclusion that charges alleged on the applicant were not proved and submitting the report to the disciplinary authority. However, thereafter, by impugned communication dated 04.09.2020 inquiry was ordered and it was accompanied by the appointment of Inquiry officer vide order dated 07.09.2020 and appointment of Presenting officer vide order dated 07.09.2020(Annexure-A/1 Colly.). The applicant contends, this is in violation of CCS (CCA) Rules and also rights of the applicant granted under Article 20(2) of the Constitution of India, as this is like a fresh or a re-inquiry into the 2015 charge Memorandum. Therefore on the basis of facts and grounds mentioned in the original application, applicant has sought for quashing of impugned communication dated 04.09.2020 (Annexure A/1 Colly).
After notice, official respondents filed their reply and justified the legality of the impugned order. It is stated that CBI, Gandhinagar had registered a criminal case against Shri Pankajkumar Chaudhari, Inspector Customs Division, Surat on 07.03.2011 under section 7 of the PC Act, 1988. On the basis of intelligence input against Shri Mehool Jhaveri, Authorized Signatory of M/s Khimji Poonja Freight Forwarders Pvt. Ltd. (M/s. KPFFPL.), Ahmedabad (CHA) alleging therein that in criminal conspiracy with applicant, Shri Mehool Jhaveri, has paid an amount other than legal remuneration to get his work done. Though applicant had not processed any export files but the investigation revealed that he used to collect bribe amount from Shri Mehool Jhaveri, Authorized Signatory of M/s.KPFFPL, Ahmedabad or through Shri Girish Malpani, executive of M/s KPFFPL for himself and on behalf of the ‘POOL’ and distribute the same among the officers of Customs division, Surat.
It is further submitted that investigation conducted by CBI, Gandhinagar revealed that Shri Mehool Jhaveri in his conversation with Shri Devinder Sangwan, Inspector, Customs Division, Surat during the period from July, 2010 to October, 2010 was discussing various files and payment of illegal gratification regarding the shipping bill files of M/s.KPFFP. It was also revealed that he used to collect money on behalf of the POOL including the officials posted at Customs Division, Surat i.e. Shri V.S.Pargi, R.C.Chaudhari both Superintendents, applicant P.N.Chaudhari and Smt. Sadhana Bapat, Inspectors. The investigation established that the Customs officials were acting in tandem for clearing the export-import consignment of M/s KPFFPL, handled by Shri Mehool Jhaveri in lieu of which they were receiving illegal gratification. The investigation revealed that Shri Pankaj Chaudhary had processed file pertaining to Ms.KPFFPL and inspected the goods in respect of documents filed by Ms.KPFFPL.
It is further submitted that Commissioner, Central Excise, Customs Service Tax, Surat-I accorded sanction for the prosecution of Shri Pankajkumar N. Chaudhary, Inspector vide sanction Order dated 16.12.2011. The Charge Memorandum dated 08.06.2015 (Annexure-A/2) was issued to Shri Pankajkumar N. Chaudhary, Inspector by the Commissioner of Central Excise, Customs & Service Tax, Audit-I, Vadodara.
After denial of charges levelled against the applicant and his representation vide letters dated 09.10.2015 (Annexure-A/3) and dated 11.01.2016 (Annexure-A/5) Inquiry Officer and Presenting Officer was appointed. Thereafter, inquiry report was submitted on 19.01.2017 wherein Inquiry Officer had concluded “article of charge framed against the CO is not proved”. At that juncture 2nd stage advise was sought vide letter dated 06.03.2017 from DGoV AZU, Ahmedabad who, in turn, advised re-inquiry in the matter and accordingly, Inquiry Officer/Presenting Officer were appointed vide orders dated 07.09.2020.
In the reply, it is further stated that charge memorandum dated 31.07.2015 was issued with Annexure-III containing list of documents by which the charges against the applicant were proposed to be sustained. Hence, the applicant’s contention that it was issued without evidence is baseless. Further, there were serious lacunae in the IO report as detailed in para 16 of the reply in which it is stated that there were procedural lapses, allowing same individuals as both prosecution and defence witness, improper appreciation of the corroborative evidence alongwith CFSL report and over- reliance on the depositions made by the charged officers and co-conspirators. It was submitted that in view of this serious lacunae in inquiry report, re-inquiry was ordered under Rule 15(1) of the CCS(CCA) Rules, 1965.
It is submitted that in the instant case, the order of re-inquiry was issued under Rule 15(1) of the CCS (CCA) Rules, 1965. On the basis of reply, official respondents have prayed for dismissal of the original application.
Thereafter, the applicant has filed rejoinder mostly reiterating the plea taken in the OA.
Learned counsel for the applicant vehemently argued that in pursuance of charge memorandum dated 08.06.2015 (Annexure-A/2) inquiry was conducted and inquiry officer has submitted its report on 19.01.2017 concluding that article of charge framed against the CO was not proved and therefore, order of re-inquiry almost after 3 years by issuing impugned order 04.09.2020 (Annexure-A/1) is in violation of CCS (CCA) Rules, 1965. The counsel argued that there are no disagreement note of the Disciplinary Authority (DA) and the advise of the DGoV was simply adopted by the DA without any application of mind. It is also contended that there is no evidence to support the charges. The applicant relied upon the judgment passed by the Hon’ble Supreme Court in case of K R Deb vs Collector of Central Excise reported in (AIR 1971 SC 14471), Vijay Shankar Pandey vs Union of India reported in Civil Appeal No.9043 of 2014 as also the order dated 18.09.2020 passed by this Tribunal in OANo.276/2019 of Rakesh K Chauhan vs Union of India and Others to contend that as per Rule 15 of the CCS (CCA) Rules there is no provision of re-inquiry and therefore the impugned order dated 04.09.2020 (Annexure-A/1) is liable to be set aside.
On the other hand, learned counsel for the respondents supported the impugned order and vehemently argued that on the inquiry report dated 19.01.2017, 2nd stage advice was sought vide letter dated 06.03.2017 from DGoV AZU, Ahmedabad. The DGoV Ahmedabad, vide letter dated 28.01.2020 advised re-inquiry in the matter and accordingly, Inquiry Officer/Presenting Officer were appointed. It was further contended that serious procedural lapses/lacunae in the Inquiry Report dated 19.01.2017 had crept in and therefore as per the provisions of Rule 15(1) of CCS (CCA) Rules, 1965, impugned order dated 04.09.2020 was issued, which was legal and proper.
Learned counsel for the respondents placed reliance on the judgment of Hon’ble Supreme Court reported in Union of India vs Thyagarajan reported in SCC (L&S) 2020 (2) 29.
We have heard learned counsel for the parties and gone through the records placed before us.
It is an undisputed facts on record that charge memorandum dated 08.16.2015 (Annexure-A/2) was issued to the applicant whereafter, Inquiry Officer /Presenting Officer was appointed. Inquiry Officer completed the inquiry and submitted report dated 19.01.2017 concluding that “article of charge framed against CO is not proved.” Thereafter, second stage advice was sought and on that basis, impugned order dated 04.09.2020 was issued.
For considering the challenge made by the applicant to the impugned order on the ground that once the Inquiry Officer concluded the inquiry holding that charge is not proved passing the impugned order dated 04.09.2020 without following procedure prescribed under Rule 15(3) of CCS (CCA) Rules, 1965 is illegal and unsustainable. It is necessary to reproduce the relevant provisions i.e Rule 15 of CCS (CCA) Rules, 1965, as under:-
“15. Action on the inquiry report.
(1) The disciplinary authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule, 14, as far as may be.”
(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority, or where the Disciplinary Authority, a copy of the report of the Inquiring Authority together with its own tentative reason for disagreement, if any, with the findings of the Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days irrespective of whether the report is favourable or not to the Government w\servant.
(3)(a) In every case where it is necessary to consult the Commission, the Disciplinary Authority shall forward or cause to be forwarded to the Commission for its advice. :
(i) a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the finding of Inquiring Authority on any article of charge; and
(ii) comments of Disciplinary Authority on the representation of the Government servant on the Inquiry report and disagreement note, if any and all the case records of the inquiry proceedings.
(b) The Disciplinary Authority shall forward or cause to be forwarded a copy of the Commission received under Clause (a) to the Government servant, who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days on the advice of the Commission.
(4) The Disciplinary Authority shall consider the representation under sub-rule (2) and/or Clause (b) of sub-rule (3), if any, submitted by the Government servant and record its findings before proceedings further in the matter as specified in sub-rules (5) and (6).
(5) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty.
(6) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:”
Looking to Rule 15, it is apparent that Disciplinary Authority is empowered to record the reasons in writing and remit the case to the Inquiring Authority for further inquiry in accordance with the provisions of Rule 15 of CCS (CCA) Rules, 1965.
In the present case, looking to the reply submitted by the respondents, it is clear that after submission of the inquiry report on 19.01.2017, 2nd stage advice was sought a based upon which, impugned orders dated 04.09.2020 and 07.09.2020 appear to have been issued and accordingly, Inquiry Officer/Presenting Officer were appointed. Although alongwith reply, no supporting documents in respect of averments made in the reply has been placed on record by the official respondents. However, a categorical stand has been taken in the reply that there was a serious lacunae in the inquiry report by mentioning the detailed facts.
Therefore, now the question that arises for consideration by this Tribunal is whether procedure prescribed under Rule 15 of the CCS (CCA) Rules, 1965 was followed by the Disciplinary Authority or not and whether in the given facts and circumstances of the case, the Disciplinary Authority can order for re-inquiry or fresh inquiry?
As per the reply of the official respondents, after submission of the inquiry report, it appears that the Disciplinary Authority had not followed the procedure prescribed as per Rule 15 of the CCA (CCS) Rules except to seek 2 nd stage advice prior to issuance of impugned order dated 04.09.2020. Thus he omitted to record his reasons in writing to conduct fresh inquiry. And fresh or re-inquiry is not stipulated in rule 15 ibidem.
At this stage, it is relevant to observe that the scope of judicial review is limited to the decision making process and not the decision itself. The judgment laid down by Hon’ble Supreme Court in the case of Inspector of Panchayats and District Collector, Salem vs. S.Arichandran and Others reported in 2022 SCC Online 1282 was placed to observe in paragraph No.15 as under:-
“At this stage, a recent decision of this Court in the case of Rajit Singh (supra), in which this court had considered its earlier decision in the case of A Masilamani (supra) is required to be referred to. In paragraph 15, it is observed and held as under:-
“15. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India v. A Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:-
“16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and concluded the same (Vide ECIL v. B.Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [2002) 19 SCC 293], U.P. State Spg.Co.Ltd. v R.S.Pandey [2005) 8 SCC 264] and Union of India v Y.S. Sadhu [(2008) 12 SCC 30]).”
Looking to the aforesaid dictum it is clearly held by the Hon’ble Supreme Court that if the Departmental proceedings are vitiated for violation of principles of natural justice or compliance of statutory rules then in such situation, matter is required to be remitted to the concerned authority to conduct the inquiry from the point/stage that it stood vitiated and conclude the same in accordance with law.
Since the official respondents have taken a specific stand through their reply that there is serious lacunae in the Inquiry report, as per the proposition of the law laid down by Hon’ble Supreme Court in the case of Inspector of Panchayats and District Collector, Salem vs. S.Arichandran and Others (supra), the matter is required to be remit from the stage after submission of the inquiry report dated 19.01.2017 by the Inquiry Officer to the disciplinary Authority to take steps in terms of the Rule 15 of the CCS (CCA) Rules, 1965 and in that view of the matter, the impugned order dated 04.09.2020 is liable to be quashed and set aside.
Rule 15 of the CCS (CCA) Rules permits the Disciplinary Authority to consider the case from the stage of submission of the inquiry report by the inquiry authority to the Disciplinary Authority and therefore, the contention of the applicant on the Inquiry Report that there is no evidence in respect of charge is also required to be taken note of. Accordingly, the Disciplinary Authority is free to proceed further in accordance with Rule 15 ibidem and if it chooses to proceed further, it will ensure to provide reasonable and fair opportunity to the applicant to explain or defend his side as per rules. Since Original Applications are hereby decided on merit, all pending MAs are disposed off.
In view of the aforesaid discussion and the factual matrix thus emerging, the present Original Applications are partly allowed. The impugned order dated 04.09.2020 and 07.09.2020 are quashed and set aside and cases are remanded back to the Disciplinary Authority to take steps on the inquiry report as per the procedure prescribed under Rule 15 of the CCS (CCA) Rules, 1965 within a period of two months from the date of receipt of a copy of this Order. There is no order as to Costs.