1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIION NO.2478 OF 2003 Union of India through the Secretary & Ors. .. Petitioners V/s J.N.Meena & Ors. .. Respondents Mrs.Neeta Masurkar for the Petitioners. Mr.Ramesh Rammurthy with Mr.Saikumar Rammurthy for Respondents. CORAM : D.K.DESHMUKH & R.G.KETKAR, JJ. DATE : 11th August, 2009. P.C.: 1. This petition challenges common judgment and order dated January 17, 2003 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai (for short ‘CAT’), whereby the Original Application No.875 of 2001 preferred by the 2nd respondent herein and the Original Application No.49 of 2002 preferred by the 1st respondent herein were allowed and the orders F.No.S/9-22/98 Vig./1637 dated August 30, 2001 in OA No.875/2001 and F.No.S/9-22/98 Vig./1638 dated August 30, 2001 in OA No.49/2002 were set aside. The Respondent No.3, Commissioner of Customs (G) was directed to take action on the Inquiry Report in accordance with law and pass appropriate order accordingly, without being influenced by extraneous 2 consideration and/or instructions issued by any authority within the scope of the statutory rule. 2. The petition arises in the following circumstances: The Respondents-original applicants at the relevant time were working as Appraisers at Dock Examination Section of Customs House, Kandla, So far as Respondent No.2 is concerned, the charges levelled against him related to the period from July 1993 to December 1993, and so far as Respondent No.1 is concerned, the charges levelled against him related to the period from July 1992 to July 1993. The allegations in respect of 2nd Respondent under Article-I were that while he was functioning as Appraiser at Dock Examination Section at Custom House during the period from July 1993 to December 1993, he failed to examine properly the consignment of declared description as “Lead Scrap” which concealed the “Ball Bearings” covered under (B/E No.4120) of M/s.Natraj Metal Pvt.Ltd., and thereby confirmed the description of the goods on the said Bill of Entry. Under Article-II the 2nd Respondent was charged that while he was functioning as such, he had written the false examination report without emptying even a single drum from the consignment or carrying out weighment of the goods covered under the Bill of Exchange in question and thus he either aided or abetted the smuggling of “Ball Bearings” of foreign origin into India. In respect of the 1st Respondent somewhat the similar charges (except the number 3 of Bill of Entry, Date of Entry and the Party being M/s.R.K.International, Ahmedabad) were levelled. The Respondents- original applicants disputed the allegations and submitted their written statement. Eventually, inquiries were held by the Inquiry Officer, the Commissioner for Departmental Enquiry. On conclusion of the inquiry, the Inquiry Officer submitted the Inquiry Report on November 19, 1999 in respect of the 2nd Respondent and on October 30, 1999 in respect of the 1st Respondent. In both the cases, on analysing the evidence on record, the Inquiry Officer held that none of the allegations made against the Respondents herein were established and accordingly he exonerated them from the charges. On consideration of the Inquiry Report, the Disciplinary Authority viz.the Commissioner of Customs, Petitioner No.3 herein, agreed with the findings of the Enquiry Officer’s Report in both the cases. The Disciplinary Authority under his Memo F.No.S/9-22/98 Vig./1635 dated September 8, 2000 sent his communication to the Directorate of Vigilance, Customs & Central Excise indicating his mind. It further seems that the Central Board of Excise and Custom addressed a communication dated November 29, 2000 to the Central Vigilance Commission (for short ‘CVC’). The CVC considered the Memo dated September 8, 2000 as also the communication of Central Board of Excise and Custom dated November 29, 2000 and recommended imposition of major penalties on the Respondents under OM No.A/CEX/10 dated March 28, 2001. 4 3. It is on that basis the impugned notices were served on the Respondents on August 30, 2001. The Respondents challenged the notices by filing Original Applications before the CAT. Before the CAT specific contention was raised to the effect that under Central Civil Services (Classification, Control & Appeal) Rules 1965, and in particular Rule 15(3), it is the Disciplinary Authority which has to take action on the Inquiry Report. Rule 15(3) reads as under:- “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. Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the disciplinary authority to the disciplinary authority to the Commission for the advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government Servant.” 4. Perusal of the above rule indicates that before imposing any penalty specified in clauses (i) to (iv) of Rule 11, wherever it is necessary to consult the Commission viz.Union Public Service Commission (U.P.S.C.) the record of the inquiry has to be forwarded by the disciplinary authority to the Commission for advice and such an advice has to be taken into consideration before making any order 5 imposing any penalty on the Government Servant. In the first place, the Respondents before the CAT submitted that the Inquiry Officer exonerated the Respondents of all the charges and even the Disciplinary Authority concurred with the report made by the Inquiry Officer. In that case, it was absolutely unnecessary to seek advice of the Commission. Secondly, the advice of the Commission is contemplated only when any of the penalties specified in clauses (i) to (iv) are to be imposed on the Government Servant. At any rate the rule does not provide for obtaining advice of the CVC. Thirdly, the penalties as specified can be imposed by the Disciplinary Authority if it agrees with the Inquiry Officer’s Report of holding Government Servant guilty of any of the charges, or if the Inquiry Officer exonerates the Government Servant of all the charges, by following due process of law the Disciplinary Authority disagrees with the Inquiry Officer’s Report and decides to impose the penalty. It is only when the Disciplinary Authority comes to the conclusion that the Government Servant is guilty of mis-conduct, then and then alone the question of imposition of penalty arises. 5. Before the CAT, the Respondents placed reliance on the judgment of the Apex Court in the case of Nagraj Shivarao Karjagi V/s.Syndicate Bank Head Office, Manipal and Another, AIR 1991 SC 1507. Apex Court in that case considered the provisions of Syndicate Bank Officer Employees’ (Discipline and Appeal) 6 Regulations 1976. Regulation 19 thereof provides for consultation with the CVC. It states that the Bank shall consult the CVC wherever necessary in respect of all disciplinary cases having a vigilance angle. In paragraph No.19 of the said judgment, the Apex Court observed that the punishment to be imposed whether minor or major, depends upon the nature of every case and the gravity of mis-conduct proved. The Authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the CVC or of the Central Government. No third party like the CVC or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. 6. In support of this petition, Ms.Masurkar, learned counsel for the petitioners relied upon the Instruction Nos.14.4 and 15.1 of the Procedure for Imposing Penalties, which read as under:- “ 14.4 Functions of the Commission, particularly those relating to disciplinary proceedings. - The functions of the Central Vigilance Commission extend not only to advising the Government of India in regard to disciplinary cases relating to – (a) Group ‘A’ officers of the Central Government, and (b) such level of the officers of the corporations established by or under any Central Act, Government Companies, societies and other local authorities, owned or controlled by the Central 7 Government as are specified, but also to according its approval to the appointment of the Chief Vigilance Officers in various departments of the Union Government, to undertake regular and surprise checks of sensitive spots, to recommend the streamlining of the procedure to check corruption, to get the departmental inquiries conducted by the Commissioners for the Departmental Inquiries attached to the Commission, and to get inspected the civil engineering works being executed by various departments of the Union Government and other bodies coming within the jurisdiction of the Commission. The Central Vigilance Commission is also responsible to advise and to take suitable measures relating to Preventive Vigilance. The Commission is, thus, exercising a general supervision over the vigilance and anti-corruption activities of the Government of India. However, the Commission is to be consulted only in those cases which, prima-facie, have, or are likely to have, a vigilance angle and an element of corruption, criminal misconduct or malafides. The Commission is also to be consulted where it is proposed to prosecute public servants appointed by the President of India.” Procedure for Consultation: “15.1. Unlike the Public Service Commissions who are consulted at one stage only, i.e.after the inquiry is over but before the final decision is taken, the Central Vigilance Commission is to be consulted at two stages. Firstly, after holding the preliminary inquiry when the Commission may advice to close the case or to initiate criminal proceedings, or departmental proceedings for minor or major penalty action. If the advice is for major penalty proceedings, the Commission recommends the name of a Commissioner for 8 Departmental Inquiries also for appointment as the inquiring authority. The second stage consultation with the Central Vigilance Commission is necessary only in cases of major penalty proceedings after the inquiry has been completed but before a final decision is taken. The Commission, at this stage, may advice for exoneration of the charged officer or for imposition of a minor or major penalty.” 7. We are unable to accept these submissions. Having regard to the scheme of the Rules, once the Disciplinary Authority agreed with the report of the Inquiry Officer who exonerated the respondents, there was no occasion for the Disciplinary Authority to seek advice of the CVC. The CVC cannot in the peculiar facts and circumstances of the case influence the decision of the Disciplinary Authority. The reasons and conclusions of the CAT cannot be faulted on that score. In the result, petition fails and is dismissed accordingly. Rule discharged. No order as to costs. (D.K.DESHMUKH,J.) (R.G.KETKAR, J.)