1 WP-3358-2011 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3358 OF 2011 B.P.Singh ...Petitioner Versus Union of India & ors. ...Respondents Mr.Ramesh Rammurthy for petitioner. Mr.Irfan Shaikh i/b. Mr.S.B. Shetye for respondent no.1. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE, JJ. October 17, 2011. P.C. 1. We have heard Mr.Rammurthy, the learned counsel for the petitioner. This petition filed under Articles 226 and 227 of the Constitution impugns the order dated 18th July 2007 passed by the Central Administrative Tribunal, Bench at Mumbai in O.A. no.310 of 2005. The said O.A. was filed by the petitioner and the impugned order was challenged in the first round in Writ Petition No.6832 of 2007 and the 2 WP-3358-2011 said petition was disposed off on 23/9/2008 with liberty to the petitioner to file a review petition. Accordingly the petitioner approached the Tribunal with a Review Petition i.e. Review Petition No.2 of 2009 and the same has been rejected on 21/6/2010. 2. The petitioner was appointed in the year 1978 as Group `A’ Officer in the Customs and Central Excise Service. He came to be posted as Assistant Commissioner in the Export Department, New Customs House, Mumbai between July 1994 to April 1996. In the period from July 1995 to February 1996 the exports of 16 Delhi based exporters of bicycle parts came to be investigated by the DRI, New Delhi as an independent investigating agency and on 30/3/1999 the petitioner was issued a charge- sheet. There were in all four charges levelled against him and they were as under: “ARTICLE-I Shri B.P.Singh while working as above, processed the S/Bills of certain fraudulent exporters of bicycle parts and he failed to safeguard the Prohibitions set out under Section 76(1)(b) of the Customs Act, 1962, which resulted in 3 WP-3358-2011 sanction / payment of ineligible drawback amount of Rs. 39.04 crores to certain suspect exporters of bicycle parts. Shri B.P. Singh has thus failed to maintain absolute integrity and devotion to duty and thereby contravened the provisions of Rule 3(1)(i) and Rule 3(1)(ii) of CCS (Conduct) Rules, 1964. ARTICLE-II Shri B.P. Singh while posted as above, misused his position and exerted pressure on the Appraising Officers assigned with the processing of S/Bills for export of Bicycle parts filed by the suspect exports, and misled them for the purpose of getting those S/Bills processed by them, without raising any objections about the genuineness of the declared unit price and also on the highly inflated P.M.V. shown in the S/Bills which were much less than drawback amount claimed. This act for omissions on his part resulted in payment of ineligible draw back of about Rs.39.04 crores to the suspect exporters. In doing so, he failed to maintain absolute integrity and devotion to duty and acted in a manner 4 WP-3358-2011 which is unbecoming of a Govt. servant and thereby contravened Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. ARTICLE-III Shri B.P. Singh while posted as above, failed to ensure the integrity and devotion to duty of the Appraising Officers and Ministerial Officers working under him in the Export Department of Mumbai Customs House who processed the S/Bills relating to export of bicycle parts by certain suspect exports which resulted in sanction/payment of ineligible drawback of Rs.39.04 crores and thereby contravened the provisions of Rule 3(2)(i) of CCS (Conduct) Rules, 1964. ARTICLE-IV Shri B.P. Singh while posted as above failed to ensure proper maintenance of stipulated registers / records and processing of the S/Bills related to the export of bicycle parts under claim for duty drawback by the officers working under his charge which resulted in over invoicing of unit F.O.B. 5 WP-3358-2011 prices thereby causing substantial loss to Government revenue. In doing so, he failed to ensure devotion to duty of his subordinate officers and has consequently contravened the provisions of Rule 3(2)(i) of the CCS (Conduct) Rules, 1964.” 3. The departmental enquiry was conducted by the Commissioner of Customs and the report was submitted on 9/12/2002 holding that Charge nos.1, 2 and 3 were partly proved and charge no.4 was not proved. A copy of the said report was supplied to the petitioner and he had submitted a detailed representation. However, by the final order dated 2/4/2004 the Disciplinary Authority i.e. the President of India under the advice of the Union Public Service Commission imposed the penalty of reduction of pay by two stages from Rs.15,375 to Rs.14,625 in the pay scale of Rs.12,000-16,500 for a period of three years with cumulative effect. This order came to be challenged in O.A. No.310 of 2005 but unsuccessfully. 4. We have heard Mr.Rammurthy and perused the reasoning set out by the Tribunal in its first order dated 18/7/2007 as well as the order dated 6 WP-3358-2011 21/6/2010 rejecting Review Petition No.2 of 2009. 5. As noted earlier, the Union Public Service Commission had gone through the papers, the Enquiry Officer’s proceedings as well as his report and submitted its advice to the President of India through the Ministry of Finance vide its letter dated 10/3/2004. As per the Commission Article III of the charge was not proved whereas Articles I and II of the charge were partly proved. On Article-I of the charge the Commission concluded its opinion in the following words “4.6. In the Commission’s view, the counter-signing by the CO cannot be taken as a a mechanical process and teated as mere formality as has been accepted by the CO in his submission also. It is also noticed that the CO had earlier been passing shipping bills of bicycle parts of other exporters and had knowledge of the prevalent market value. Thus, it can be held that if he had conducted a closer scrutiny of the more than 1100 Shipping bills that were passed and not even one was randomly checked, the higher value declared by the exporter firms would have been 7 WP-3358-2011 visible to him straightaway. Thus, the CO has failed in his duty as a supervising revenue official of getting some counter-checking done in order to ensure safeguarding of revenue interest. However, the Commission is in agreement with IO’s report that the alleged loss of revenue of Rs.39.04 crores has not been established. This component of the charge under Article – I to that extent stands proved.” In respect of Article-II the Commission concluded its opinion in the following words: “4.10.The Commission observe that it is quite clear that there is an indication that the CO has got shipping bills processed from specific Appraisers and advising them about valuation when certain questions were raised by the Appraisers. To that extent, the charge in Article-II is proved. However, as mentioned in the analysis of Article-I, the alleged loss of Rs. 39.04 crores is not established.” 6. As the impugned order of punishment was passed by the President 8 WP-3358-2011 of India, there was no departmental appeal under the Service Rules and, therefore, the petitioner had directly approached the Central Administrative Tribunal which has considered the arguments on behalf of the petitioner in two different rounds and held that the order of punishment did not call for interference. Having regard to the opinion recorded by the UPSC, it is clear that the petitioner exhibited an element of negligence in discharge of his duties and he overlooked the work done by his subordinates. An indication of the petitioner advising and assigning the bills to certain appraisers has also been recorded by the UPSC and based on the papers placed before it. The Tribunal has considered this material and recorded a finding that the challenge to the order of punishment did not call for interference. In our powers for judicial review against an order passed by the Central Administrative Tribunal, we do not see an error apparent on the face of the record to hold that the Tribunal erred manifestly and, therefore, this petition must fail at the threshold. The petition is rejected summarily. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)