IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.2.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Petition No.33591 of 2007 and M.P.Nos.1 and 2 of 2007 Union of India, rep.by the Secretary to Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New Delhi. ... Petitioner Vs. 1.A.Kannan 2.The Central Administrative Tribunal, rep.by its Registrar, City Civil Court Buildings, High Court, Chennai-600104. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, calling for the records of the 2nd respondent pertaining to the impugned order in O.A.No.284 of 2006, dated 11.8.2006 and quash the same. For petitioner : Mr.R.Priyakumar, ACGSC For R.1 : Mr.V.Vijayashankar JUDGMENT ELIPE DHARMA RAO, J. The first respondent herein was working as Deputy Commissioner of Central Excise, Hosur-I and he was due to retire https://hcservices.ecourts.gov.in/hcservices/ from service on 31.10.2001. However, a week prior to his superannuation, by an order dated 25.10.2001, he was placed under suspension and subsequently, he was allowed to retire w.e.f. 31.10.2001, subject to the disciplinary proceedings. Thereupon, a charge memo. with five articles of charges was issued to him under Rule 9 of the CCS (Pension) Rules, 1972 read with Rules 14 and 15 of the CCS (CCA) Rules, 1965, by the proceedings dated 23.7.2003. All the five charges are inter- linked and the sum and substance of the same is that the first respondent, while functioning as Deputy Commissioner of Central Excise, Hosur-I during 2000-2001, referred seven claims for rebate filed by M/s.Premier Mills Ltd., Hosur, for pre-audit as the rebate claims were over Rs.5 lakhs value. On being objected to and intimated by the Audit that the claims are not eligible for sanction of rebate due to certain deficiencies, he had issued a show-cause notice to the party and adjudicated the show-cause notice and passed a final order Nos.4/2001 on 3.5.2001, sanctioning a total rebate amounting to Rs.77,40,997/= in nine claims, including two other similar claims of the same party and also issued the cheque for the said amount in undue haste on the very next day i.e. on 4.5.2001 without referring the matter back to the audit for concurrence or recording their contrary views in the matter, as required by the Board's instructions No.33/90, dated 31.5.1990, which contemplates that in case of difference of opinion between the Divisional Officer and Audit, the Commissioner's orders should be obtained before passing a final order and issuing the cheque. The first respondent had submitted his reply on 30.9.2003. An Enquiry Officer was appointed on 9.12.2003 and on enquiry, the Enquiry Officer, by his report dated 15.2.2005, has found all the Articles of charges, except the Charge No.1, as not proved. 2. Since the terminal benefits were not paid to him because of the pendency of the disciplinary proceedings, the first respondent filed O.A.No.678 of 2005 before the Tribunal praying to direct the respondents therein, to complete the disciplinary proceedings forthwith, wherein the Tribunal, by the order dated 31.8.2005, has directed the Department to complete and pass orders in the disciplinary proceedings, within a period of six weeks, which came to an end in October 2005. Thereupon, the Department has approached the Tribunal, by way of M.A.No.479 of 2005, praying for extension of at least six months time to conclude the proceedings and the Tribunal, by the order dated https://hcservices.ecourts.gov.in/hcservices/ 2.12.2005, has extended the time by three months and directed the Department to pass final orders before 1.3.2006. Thereupon, the Department has issued the impugned show-cause notice to the first respondent on 22.3.2006, disagreeing with the findings of the Enquiry Officer and called upon the first respondent to submit as to why the findings of the Enquiry Officer in respect of articles of charges II to IV should not be disagreed with and a major penalty i.e. suitable cut in his pension should not be imposed on him. Aggrieved, the first respondent herein filed O.A.No.284 of 2006, praying to quash the charge memo. dated 23.7.2003 and the consequential show-cause notice dated 22.3.2006 and to direct the respondent therein i.e. the petitioner herein to release the terminal benefits due to him. 3. The Tribunal, considering the fact that the Department has not taken serious note of the time frame fixed by the Tribunal to finalise the proceedings and the Department was not diligent in processing and completing the proceedings, has allowed the Original Application filed by the first respondent herein on that sole ground without going into the other aspects of the case, further directing the Department to release the terminal benefits of the first respondent. This order of the Tribunal, dated 11.8.2006, is under challenge before us in this writ appeal. 4. It is to be pointed out that in exercise of powers under Section 8(i)(g) of Central Vigilance Commission Ordinance 1999, the Central Vigilance Commission (in short 'CVC') has stipulated a model time schedule for conducting departmental inquiries and taking final decisions. The CVC has also observed that 'Delays in disposal of disciplinary cases are matter of serious concern to the Commission and such delays also affect the morale of the suspected charged employees and others in the organisation'. The Commission has specified time-limits so a to ensure that the disciplinary cases are disposed of quickly. As could be seen from Sl.No.13 of the time-schedules, which the CVC desired the Ministry/Departments of Government of India should be adhered to, so as to ensure that the disciplinary cases are disposed of quickly, within fifteen days of the Enquiry Officer's report, reasons for disagreement with the Enquiry Officer's report have to be communicated to the charged officer by the Department. From Sl.No.14, it is clear that for consideration of charged officer's representation and forwarding Enquiry Officer's report https://hcservices.ecourts.gov.in/hcservices/ to the Commission for second stage advice, a time of one month is permitted. Sl.No.15 prescribes one month time from the date of Commission's advice for issuance of orders on the Inquiry Report and two months time from the date of receipt of Enquiry Officer's report if Commission's advice was not required. 5. In view of the above time-schedule fixed by the authority on the subject, namely the Central Vigilance Commission, the reasons offered by the petitioner Department for not finalising the Departmental proceedings against the first respondent cannot be appreciated. In the case on hand, as has already been adverted to supra, the charge memo. was issued on 23.7.2003 and the Enquiry Officer was appointed on 9.12.2003 and on enquiry, the Enquiry Officer, has submitted his report on 15.2.2005 wherein he has found all the Articles of charges, except the Charge No.1, as not proved. Therefore, as per Sl.No.13 of the time-schedule of the CVC, as has been discussed supra, the Department ought to have sent the copy of the Enquiry Officer to the charged officer for his representation within fifteen days with reasons for disagreement with the Enquiry Officer's findings. 6. But, the Department has issued the impugned show-cause notice, having disagreed with the findings of the Enquiry Officer on 22.3.2006 i.e. well after one year of the report of the Enquiry Officer. It is also to be pointed out that when the first respondent approached the Tribunal by filing O.A.No.678 of 2005, for a direction to the Department to dispose of the disciplinary proceedings forthwith, the Tribunal, by the order dated 31.8.2005 has directed the Department to complete and pass orders on the disciplinary proceedings within a period of six weeks, which came to an end in October, 2005. Thereupon, the Department sought extension of time to complete the disciplinary proceedings, by filing M.A.No.479 of 2005 and the Tribunal, by the order dated 2.12.2005, has granted a period of three months to complete the disciplinary proceedings. In spite of such directions by the Tribunal, the Department has not acted diligently to comply with the directions and coolly has issued the impugned show-cause notice on 22.3.2006, disagreeing with the findings of the Enquiry Officer. The issuance of this show- cause notice itself is after 22 days of the expiry of the time granted by the Tribunal to complete the entire proceedings, which shows the lethargic attitude of the Department, further https://hcservices.ecourts.gov.in/hcservices/ exhibiting their utter disregard not only to the Model Time Limit fixed by the authority on the subject, viz. the Central Vigilance Commission but also to the orders passed by the Tribunal. The Department has not even bothered to approach the Tribunal again for extension of time. 7. The petitioner Department has also contended that after the Inquiry Report has been submitted, there are several steps that must be completed before passing of final orders and the principle of natural justice and the rules framed for conducting disciplinary proceedings binds the hands of the disciplinary authority, which provide the charged officer with the copy of Inquiry Report, copy of the second stage advice of the CVC and the observations of the Disciplinary Authority on the inquiry report to allow the charged officer to make his submissions and thereafter, the disciplinary authority would take a tentative view on the penalty and forwards the same to the UPSC for their advice, on receipt of which, the disciplinary authority would finalize the orders and all these steps are to be completed to pass the order. The petitioner Department has contended that all these aspects have not been considered by the Tribunal, forgetting the fact that the authority on the subject viz. the CVC, considering all the pros and cons of the subject has framed a time-schedule to finalise the departmental proceedings. 8. This Court wonders at the defence put forth on the part of the Department that the time frame fixed by the CVC is only a guideline and would not bind them. If not for implementation, what for these time schedules are being framed by the authorities concerned to ensure speedy disposal of the departmental proceedings, that too after complying with the principles of natural justice, is a million dollar question that remained unanswered by the petitioner . They are not the show-case pieces so as to be preserved just for a show and not for implementation. Therefore, the said contention of the petitioner Department deserves only to be rejected. The Tribunal has assessed this aspect of the case in a right perspective, which needs no interference by this Court. 9. The other aspect that this Court wants to point out is that there is no dispute regarding the fact that the first respondent was at the relevant was enjoying the quasi-judicial powers and therefore, any order passed by him is an appealable https://hcservices.ecourts.gov.in/hcservices/ one, not only by the assessee, if affected, but also by the Department. Any wrong application or interpretation of law or even non-exercise of such power, itself does not amount to misconduct, since such power is subject to judicial supervision in appeal and to maintain a charge-sheet against a quasi- judicial authority, something more i.e. extraneous consideration influencing quasi-judicial order, deliberate act or actuated by malafide, has to be alleged. To arrive at this proposition, we garner support from the judgment of the Honourable Apex Court in ZUNJARRAO BHIKAJI NAGARKAR vs. UNION OF INDIA AND OTHERS [(1999) 7 SCC 409] and the judgment of a Division Bench of this Court in THE SPECIAL COMMISSIONER AND COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI-5 AND ANOTHER vs. N.SIVASAMY [2005 (5) CTC 451]. In the case on hand, except contending that the first respondent has acted in haste, the Department has not charged him with allegations of extraneous considerations or deliberate acts or malafides. 10. From the materials placed on record, we are able to find that aggrieved against the orders passed by the 1st respondent in his capacity as the quasi-judicial authority, thus granting rebates in excise duty to a company, the Department has preferred Appeal No.7/02(M-III)(D) before the Commissioner of Central Excise (Appeals), Chennai-34, who, by the order dated 8.11.2002, has upheld the order passed by the original authority, viz. the first respondent herein. Aggrieved against such an order passed by the Commissioner of Central Excise (Appeals), Chennai-34, the Department has filed Revision Application No.198/52/2003-RA, before the Government of India, Ministry of Finance (Department of Revenue), New Delhi, wherein the Revisional Authority i.e. the Joint Secretary to the Government of India, by the order dated 28.1.2004, has confirmed the views taken by the original authority viz. the first respondent herein and the appellate authority. Thus, it is clear that there is no pith and substance in the allegations made by the Department against the first respondent and it seems, only to take vengeance against the first respondent, the officers at the helm of affairs of the petitioner Department have prolonged the proceedings against the first respondent. 11. Even as could be seen from Para No.7 of the affidavit filed in support of this writ petition, it is admitted by the petitioner Department that the first respondent was not required https://hcservices.ecourts.gov.in/hcservices/ to wait/prolong the matter for want of audit. It is also seen that concurrence of the Commissioner before passing the orders/issuance of cheques, which the first respondent is alleged to have not obtained, is only formal. The first respondent has submitted that only by instructions dated 15.3.2002, the pre-audit was made compulsory in matters of refund exceeding Rs.5 lakhs whereas he has passed the refund orders in May 2001 i.e. long before the instructions referred to by the Department. This aspect raised by the first respondent remained unchallenged. Furthermore, the imputation of undue haste levelled against the first respondent without any other allegation such as extraneous consideration, deliberate or malafide would not amount to misconduct, so as to initiate or proceed with any disciplinary proceedings against the first respondent. 12. In view of the above discussion, we are satisfied that permitting to continue the above disciplinary proceedings against a quasi-judicial authority like the first respondent, that too in the absence of any other allegation of extraneous consideration influencing the quasi-judicial order etc., is unwarranted. In the case on hand, the impugned show-cause notice is bad for not complying with the time schedule of the CVC and also the orders of the Tribunal. Therefore, continuation of such disciplinary proceedings against an employee in the absence of any material on record against him is an unwarranted exercise and hence, we find no merits in this writ petition. In the result, this writ petition is dismissed. The petitioner Department is directed to settle all the terminal benefits of the first respondent within twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed. Rao 15.2.2008 Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Registrar, The Central Administrative Tribunal, City Civil Court Buildings, Chennai-600104. 2.The Secretary to Government of India, Union of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New Delhi. • One ccto Mr. V. Vijaya Shankar, Advocte SR 7917 • One cc to Mr. R. Priyakumar, ACGSC 7809 KM (co) sg 04/03/08 Order in W.P.No.33591 of 2007 15.2.2008 https://hcservices.ecourts.gov.in/hcservices/