2022-TIOL-40-HC-MAD-VAT
SLO Steels Ltd Vs Asstt. Commissioner (ST)
In writ, the High Court observes that the order was passed without hearing the assessee, more so in respect of an issue which was pending consideration for a long time. Hence the Court holds that the assessee should have been given a hearing. Therefore, the Court quashes the order in question and directs the Revenue to pass fresh order after granting personal hearing to the assessee.
- Writ petition allowed: MADRAS HIGH COURT
2022-TIOL-38-HC-MUM-SERVICE
Bhupendra Pal Singh Vs UoI
Service - Petitioner was alleged to have sanctioned the payment of an amount of Rs. 5,20,717/- as duty drawback to M/s. Pacific International towards exports overruling a query for submission of BRC raised by the Appraiser processing the drawback claim, before submission of reply to the query by the Exporter/CHA and thereafter got the manual files destroyed causing wrongful loss of Rs. 5,20,717/- to the Government and corresponding gain to himself - Petitioner, after his acquittal by the Special (CBI) Court, amended his original application and brought the judgment on record to impress upon the Central Administrative Tribunal, Mumbai Bench, Mumbai that there was indeed no case of conspiracy to cheat the Government and that he had not committed any offence - However, the Tribunal by its judgment and order dated February 21, 2020 dismissed the original application on the grounds assigned therein- Tribunal noted that two aspects required attention, viz. (i) whether the disciplinary proceedings ought to be quashed on the ground of delayed initiation; and (ii) whether the respondents ought to be allowed to continue with the disciplinary proceedings after the verdict of the criminal court acquitting the petitioner - Tribunal on the first aspect of delayed issuance of charge-sheet relied on the decisions of the Supreme Court in State of Punjab v. Chaman Lal Goyal, reported in (1995) 2 SCC 570, State of Andhra Pradesh vs. N. Radhakishan, reported in (1998) 4 SCC 154, and Government of Andhra Pradesh & Ors. vs. Appala Swamy, reported in (2007) 14 SCC 49 , and ruled against the petitioner - On the second aspect, the Tribunal recorded that the charge-sheet filed upon completion of investigation and the departmental charge-sheet were undoubtedly the same - However, the Tribunal thereafter examined the judgment of the Special (CBI) Court and returned a finding that "this cannot be considered an honourable acquittal" - Also, having regard to the standard of proof applicable to judicial proceedings and disciplinary proceedings and the nature of misconduct alleged against the petitioner, i.e., lack of integrity and devotion to duty unbecoming of a Government servant, it (Tribunal) declined to accept the argument of the petitioner that the disciplinary proceedings should not be carried further- Aggrieved thereby, the petitioner has invoked the writ jurisdiction of this Court.
Held: [para 20, 30, 31, 32, 34, 41, 47–49]
+ If a charge-sheet is subjected to challenge on the ground that there has been inordinate delay in issuing it, thereby resulting in the charge(s) becoming stale, it is the obligation of the disciplinary authority to satisfactorily explain the reasons for the delay. [Bani Singh (AIR 1990 SC 1308 ) relied upon]
+ Various high courts across the country have also consistently interdicted disciplinary proceedings containing stale charges on the ground that it would be unfair to allow such proceedings to continue and would result in breach of principles of natural justice.
+ The principles that can be culled out are:
a. It would always be desirable to initiate disciplinary proceedings immediately after the alleged misconduct is detected but if charge-sheet is issued after a considerable length of time has passed since such detection, it would be unfair to the charged officer to proceed against him on the basis of stale charges.
b. Disciplinary proceedings may not be interdicted at the stage of charge-sheet and should be allowed to proceed according to the relevant rules since a charge-sheet does not affect any legal right of the delinquent unless, of course, it suffers from an invalidity that strikes at the root of the proceedings.
c. If there is delay in initiation of disciplinary proceedings by drawing up charges against the delinquent and such proceedings are challenged, the disciplinary authority is under an obligation to explain the reasons for the delay; and, depending upon the worth of such reasons, the Court may proceed to decide one way or the other.
d. There cannot be any exact measurement of the length of delay by reference to years to fall into the category of 'too long a delay', and what would amount to the same has to be decided depending upon the facts of a given case.
e. Should the delay be found to be too long and unexplained, that would definitely have a bearing on the seriousness of the disciplinary authority to pursue the charges against the charged officer and the Court may, in a fit and proper case, quash the proceedings because prejudice to the officer in such case would be writ large on the face of it.
f. Even if, in a given case, the delay is satisfactorily explained, the charge-sheet could still be quashed if the charged officer proves to the satisfaction of the Court that he would be severely prejudiced if the proceedings were allowed to continue, a fortiori, lending credence to the claim of unfair treatment.
g. For the mistakes committed by the department in the procedure for initiating disciplinary proceedings, the charged officer should not be made to suffer.
h. Delay in initiation of disciplinary proceedings per se may not be a vitiating factor, if the charges are grave and in such case the gravity of the charges together with the factors, for and against the continuation of the proceedings, need to be balanced before arriving at a just conclusion.
+ Bench feels it appropriate to touch upon one aspect of a service condition of a public servant which has a close relation with point (f) supra. It relates to retirement on superannuation and the effect of service of a charge-sheet containing stale charges practically on the verge/eve of such retirement.
+ More so, because incidents are not rare where an alleged act of omission/commission amounting to misconduct remains under wraps for several years and days prior to retirement of the concerned employee, proceedings are initiated by drawal of charge-sheet by the disciplinary authority for reasons well-known.
+ Let us consider a situation where a public servant who has reached the December years of his service career and waiting in the departure lounge to exit service is served with a charge-sheet concerning incidents which are more than a decade old. Although we do not rule out that there could be just reasons for the delayed initiation of disciplinary proceedings, by reason of his advanced age the charged officer may not be in a position to recollect or recall each single detail when called upon to raise his defence to the charge-sheet.
+ If such officer has to proceed for retirement on superannuation because of the age factor, it would be unreasonable and in certain cases, could defy logic, to expect him meet and answer the charge(s) relating to incidents of yesteryears although he is not considered capable to serve beyond the age of superannuation and be retained in service.
+ The movement of the file from one desk/office to another and/or exchange of correspondence for 5 (five) years without tangible result, does not evince any intention on the part of the disciplinary authority to act with promptitude and cannot be regarded as an explanation, far less a satisfactory explanation; on the contrary, it is a defensive action to ward off an attack; the 'explanation' proffered is really an 'excuse', unworthy of acceptance.
+ We, therefore, consider it more appropriate, in the interest of justice as well as the interest of the administration, that the proceedings initiated against the petitioner ought to be laid to rest, meaning thereby that the charge-sheet as well as appointment of the Inquiry Officer may not be carried forward.
+ Although the Special Court while concluding its judgment may not have expressly said that it is a case of honourable acquittal and, on the contrary, had recorded in the operative part that the charges against the accused including the petitioner had not been proved beyond reasonable doubt, we are left to wonder whether the findingswould not bring the case of the petitioner within the ambit of an honourable acquittal in every sense and purpose?
+ The judgment of the Special Court not having been carried in appeal, has attained finality; and the findings therein referred to do bring the case of the petitioner within the ambit of an honourable acquittal.
+ The upshot of the discussion on delayed issuance of the charge-sheet dated October 23, 2013 is that there being no satisfactory explanation therefor, the respondents cannot be allowed to proceed with such charge-sheet; thus, the petitioner is entitled to succeed in his claim that the disciplinary proceedings including the charge-sheet dated October 23, 2013 and all further orders in connection therewith ought to be set aside.
Writ Petition No. 5764 of 2021 is allowed.
Reasons for allowing the WP squarely applies to the case covered under Writ Petition No. 2888 of 2019, therefore, this WP too stands allowed.
Further benefits: [para 50, 61, 62]
++ Sealed cover be opened and the recommendation of the Departmental Promotion Committee be considered.
++ If the petitioner had been recommended, an order of promotion be issued. Such order will take effect from the date the peers of the petitioner were promoted. The petitioner shall not be entitled to any arrears of monetary benefit for such promotion, except that his pension shall be calculated based on the pay that he would have last drawn as such Chief Commissioner [Superintendent in r/o petitioner under WP 2888 of 2019]. Let the order of promotion be issued within a month.
++ If the Departmental Promotion Committee has not recommended the petitioner for promotion, he shall be so intimated. In such case, his pension shall be calculated based on the last pay drawn by him. The terminal benefits including pension, gratuity and other benefits to which the petitioner is entitled, based on promotion or otherwise, as the case may be, shall be released as early as possible but positively within three months of issuance of the order of promotion. The petitioner shall be entitled to interest on such unpaid amount at the highest rate that nationalized banks offer for fixed deposits.
- Petitions allowed: BOMBAY HIGH COURT
