Shri Paramjit Singh Saini vs Union Of India on 15 July, 2015

Central Administrative Tribunal - Delhi

Shri Paramjit Singh Saini vs Union Of India on 15 July, 2015

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

O.A. No.1873/2014

Reserved On:03.07.2015
Pronounced On:15.07.2015

HON BLE MR. G. GEORGE PARACKEN, MEMBER (J)

HON BLE MR. SHEKHAR AGARWAL, MEMBER (A)

Shri Paramjit Singh Saini

S/o Shri Tarsem Singh
R/o House No.101, Sector-5,
Urban Estate,
Gurgaon Haryana-122001
Aged about 55 years
Superintendent
Presently in Delhi. .Applicant

By Advocate: Ms. Jaswinder Kaur.

Versus

1. Union of India
Through Ministry of Finance,
Department of Revenue,
Commissioner of Customs,
NCH, New Delhi.

2. Commissioner of Customs (I&G)

New Custom House,
New Delhi. Respondents

By Advocate: Shri Rajeev Kumar.

ORDER

G. George Paracken, Member(J) This Original Application has been filed by the Applicant against
the alleged arbitrary and untenable action of the Respondents in conducting the departmental
enquiry against him which has not gone beyond the stage of charge sheet on the ground that the
Presenting Officer has neither been able to produce even a single original document on the basis of
which the allegations made in the charges are based nor could establish the authenticity of the

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documents relied upon.

2. The brief facts of the case are that the Applicant is presently working as Superintendent under the
Respondents. While he was posted in the Drawback Section in the office of the Import and General,
New Customs House ( NCH for short), Delhi during the period from 21.07.2005 to 21.02.2006,
the Respondents have alleged that the Applicant had committed the misconduct of processing the
unauthorized fraudulent supplementary duty drawback by increasing the drawback quantity and the
rate per piece over and above the existing rate in respect of the shipping bill as detailed under:-

S.No.& Name of Exporter Shipping Bill No.& Date SDD Amount(Rs.)& scroll date Passing AC &
Supdt.

SDD Drawback Head Initial Drawback Qty.

Changed Drawback Qty.

1.M/s Foremost lndia Exports 5597447 26.04.2005 07,92,900/-

01.09.2005 R.K.Saini & P.S.Saini 1490 Rs.42 per Kg.

Rs.100 Per piece

2.M/s. G & J Apparel 5475112 07.02.2005 01,86,993/-

28.10.2005 R.K.Saini & P.S.Saini 1296 Rs.42 per Kg.

Rs.23.7 per piece

3.M/s. G & J Apparel 5495394 21.02.2005 01,61,736 28.10.2005 R.K.Saini & P.S.Saini 509 Rs.42
per Kg.

Rs.27.6 Per piece

4.M/s.THE Makers Pvt. Ltd.

6401125 11.042002 04,88,124/-

21.10.2005 R.K.Saini & P.S.Saini 12.5% of fob i.e. Rs.444844 7.8 29055 Rs.16.8 per piece

5.M/s.Satyam Overseas 5243328 21.07.2004 1140000/-

N.A.

R.K.Saini & P.S.Saini 26400(initial rate not available) 38000 Rs.14.00/- per piece

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6.M/s.Satyam Overseas 5439429 10.01.2005 10,80,000/-

N.A.

R.K.Saini & P.S.Saini 6.8.% of fob i.e. Rs.44633.5 Hi-item not available

7.M/s.Satyam Overseas 5243328 21.07.2004 05,32,000/-

14.11.2005 R.K.Saini & P.S.Saini 18862 (Initial rate not available) 38000 Rs.40.00/- per piece

8.M/s.Satyam Overseas 5439429 10.01.2005 05,12,000/-

14.11.2005 R.K.Saini & P.S.Saini 6.8.% of fob i.e. Rs.497877.3 12800 Rs.14.00/- per piece

9.M/s.

Modwear Exports 5870886 05.11.2005 06,98,640/-

26.11.2005 R.K.Saini & P.S.Saini 6% of fob i.e Rs.4028131.3 4920 Rs.142/-Per piece

10.M/s Major Exports 5484117 26.04.2005 05.22,000/-

03.12.2005 R.K.Saini & P.S.Saini 18000 53.5 per Kilo 18000 Rs.29 per piece.

11. M/s Sana R-Creations 6303283 dt 29.12.01 295000 dt.

3.12.05 R.K.Saini & P.S.Saini 2400,14.5% of FOB i.e. 15.05,976/-

Rs.50 per piece.

12. M/s Sana R-Creations 5652083 31.05.2005 02.26.226 18.01.2006 R.K.Saini & P.S.Saini 87326%
of fob i.e. ***** Rs.950358.6 Rs.26 per piece.

13. M/s Excel Mart 5930108 20.12.2005 86,400/-

05.04.2006 R.K.Saini & P.S.Saini 2880 7.5% of fob i.e. Rs.1,18,192/-

10000 Rs.8.64 per piece.

14. M/s Razzmatazz 53779899 22.11.2004 02,20,000/-

09.01.2006 R.K.Saini & P.S.Saini 6036 10.6% of fob i.e. Rs.6,78,564/-

11000 Rs.20 per piece.

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15. M/s. Jarom International 5874780 08.11.2005 03.30,500/-

04.01.2006 R.K.Saini & P.S.Saini 3220 7.5% of fob i.e. Rs.7,28,194 13200 Rs.25 per piece.

16. M/s Kunnumal Exports 5146026 23.04.2004 03.23,900/-

26.01.2005 R.K.Saini & P.S.Saini 4100 9.5% of fob i.e. Rs.5,48,580 Rs.79 per piece.

17. M/s Kunnumal Exports 5618333 09.05.2005 02,86,000/-

07.02.2006 R.K.Saini & P.S.Saini 6% of fob i.e. Rs.18,59585/-

11000 Rs.26/- per piece.

18. M/s Kunnumal Exports 5867809 31.10.2005 02,19,000/-

24.02.2006 Ram Chander & P.S.Saini 7.5% of fob i.e Rs.1186016.4 Rs.30/- per piece.

19. M/s River Valley Clothing (India) Pvt. Ltd.

5892733 22.11.2005 02,34,000/-

07.02.2006 R.K.Saini & P.S.Saini 3000 7.5% of fob i.e. Rs.654637.5 11700

20. M/s River Valley Clothing (India) Pvt. Ltd.

5955464 10.01.2006 01,92,000/-

24.01.2006 Ram Chander & P.S.Saini 6% of fob i.e. Rs.561136.3 12800 Rs.15/- per piece.

21.M/s Guiness Collection 5928616 19.12.2005 01,68,840/- 24.02.2006 Ram Chander & P.S.Saini
98.01 6% of fob Rs.393630.5 3600 Rs.46.90/ per piece

22. M/s Texmoda 5848675 18.10.2005 01,20,000/- 05.04.2006 Ram Chander & P.S.Saini 98.01
7.5% of fob i.e. Rs.11,46,270/-

9600 Rs.12.5% per piece

23. M/s Nissie India Aencies 6775812 10.04.2003 50,400/- 14/09/05 R.K.Saini & P.S.Saini 9.5% of
fob i.e. Rs.4,16,938/-

Rs.07/- per piece Loss Caused 88,66,659/-

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3. The Disciplinary Authority has, therefore, vide their Memorandum

No.C.VIII(AirCusVig./CS/41/12/381 dated 24.08.2012, proposed to hold an enquiry against him
under Rule 14 of the CCS(CCA) Rules, 1965. Along with the aforesaid Memorandum, the
Disciplinary has also enclosed the following list of documents by which the aforesaid charge was
proposed to be sustained as under:-

List of Documents (i) A copy of the charge sheet issued by CBI issued to six other officers involved
in the case.

(ii) CBI Report RC 4/2006/EOU-IX/New Delhi.

(iii) Print out of the shipping views in which SDD claims was made containing login id of Shri P.S.
Saini, Superintendent.

(iv) Scrolls containing details of the shipping bills and SDD amounts granted.

(v) Statement of Bank accounts of the exporters listed in the table to whom SDD has been granted
with PNB, NCH, New Delhi showing credit of SDD amount.

(vi) The print out of the login id details which were used at the time of passing of SDD claims
including the login id of Shri P.S. Saini, Supdt.

(vii) History item notes of 84 shipping bills including the bill mentioned in the table of Para 3.3 of
Annexure-II in which the increased drawback quantity and rate per piece is present which was the
basis for giving unauthorized and fraudulent SDD.

(viii) Letter showing user id of Shri P.S. Saini.

(ix) Attendance record of Shri P.S. Saini for the scroll date of the shipping bill.

(x) Statement Dt.16.08.2007 of Shri Ranjit Kumar, Joint Commissioner.

(xi) Statement Dt. 18.03.2008 of Shri Avinash Pushkarna, Deputy Commissioner.

(xii) Statement dt. 17.11.2009 of Shri Ved Prakash Singh, Assistant Commissioner.

(xiii) Statement dated 17.11.2009 of Shri P.C. Dhanwari, Suptd. Customs regarding non-availability
of documents in support of the claims and their non-eligibility.

(xiv) Statement dated 01.10.2009 of Shri Bhagwat Dayal, Suptd. Customs proving the user ids of
ACs and Supdts who have processed the unauthorized claims.

(xv) Statement dated 29.09.2009 of Shri Rakesh Ballabh proving the H-item notes including the
notes containing the details of the above mentioned shipping bills in which changes have been

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made.

(xvi) Statements dated 05.10.2009, 12.10.2009 and 22.10.2008 of Sri Ganesh Rakeja, Scientist NIC
stating that the changes in the drawback quantity and rate per piece can be made from the front end
by accessing the various options in the shipping bills view screen.

(xvii) Statement dated 06.09.2007 of Shir R.K. Dhir, Section Manager, PNB & statements dated
19.11.2009 and 20.11.2009 of Shri Rajeev Bhatia, Deputy Manager, Punjab National Bank proving
the credits in the accounts of the exporters .

4. Vide letter dated 04.09.2012, the Applicant denied those charges against him. However, the
Disciplinary Authority decided to go ahead with the enquiry proceedings and, vide letter dated
31.05.2013, appointed Shri Rahul Lal, Deputy Commissioner, I&G as Enquiry Officer. The Enquiry
Officer commenced the disciplinary proceedings on 05.06.2013. On the said date, the Applicant
sought permission to inspect all the originals of the relied upon documents. Accordingly, the
Enquiry Officer directed the Presenting Officer to make available all the original relied upon
documents on the next date of hearing, i.e. 16.07.2013. On the said date, the Enquiry Officer could
not go head with the enquiry proceedings as the Presenting Officer ( PO for short) failed to
produce the original documents. The PO, however, submitted, vide his letter dated 18.06.2013, he
had requested the Disciplinary Authority to supply the original documents to produce before the
Enquiry Officer but the same was not made available. The Enquiry Officer gave another opportunity
to produce the documents before 12.08.2013. On that date also, the PO failed to produce the original
documents and the matter was further adjourned to 30.08.2013. Again, the PO failed to produce the
original documents on the said date and the matter was further adjourned to 13.09.2013. On that
date also PO informed the Enquiry Officer that the Deputy Commissioner (Vigilance), IGI Airport,
T-3, New Delhi has written a letter dated 05.09.2013 to the Deputy Commissioner (Vigilance), Air
Cargo Export, New Delhi to procure the documents from DGOV and make available them for
inspection of the Applicant. Accordingly, the EO directed the PO to produce the documents on or
before 23.09.2013 as already 6 opportunities have already been given to him. As the PO again failed
to produce the original documents, the Enquiry Officer gave last opportunity to produce the records
before 03.10.2013. However, on 03.10.2013, the PO produced the photocopies of the relied upon
documents received from the office of the Commissioner of Customs (I&G), IGI Airport. However,
the Applicant objected to the photocopies as they are not reliable and, therefore, they cannot be
taken on the record of the enquiry file. Further, according to the Applicant, the photocopies
produced by the PO was not authenticated in view of Department of Revenue Circular Letter
No.F.14010/13/2011-Ad.-V dated 24.02.2011. The Enquiry Officer has, therefore, on that date made
the observation that despite of being given several opportunities, the PO has not produced the
originals of the RUDs. Even the authenticated copies have not been produced today. Hence it is not
possible to proceed further in the case. The PO is directed to take further suitable action in the
matter in the absence of the documents . Finally on 18.10.2013, the PO produced the photocopies of
the relied upon documents which were actually the attested copies of the true copies signed by Shri
Ephrem Horo, Air Customs Superintendent, IGI Air Port, New Delhi . Again, the Applicant made
objections that the documents produced by the PO were photocopies of the earlier photocopies and,
therefore, they cannot be taken on record by the Enquiry Officer. On the next date of hearing, i.e.,

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03.12.2013 Shri Ephrem Horo, Air Customs Superintendent, IGI, Air Port, New Delhi also stated
that the photocopies of the relied upon documents presented by the PO have been attested by him
on seeing the true photocopies of the relied upon documents available in the file of the Vigilance
Section of Air Custom, IGI Airport, T-3, New Delhi and that he had not seen the originals of those
documents as they were not available in the vigilance file. On 19.12.2013, the EO observed that so far
10 dates were fixed for hearing but till that date the PO could not produce the documents or their
authenticated copies. He has also observed that it was crystal clear that even after the authenticated
documents relied, the inspection of the Charged Officer to verify their authenticity cannot be
dispensed with in the interest of fair play and natural justice. Further, he has observed that even on
the next date of hearing if the PO failed to produce the documents he will conclude this case as of no
evidence. Accordingly, the hearing was adjourned to 18.01.2014 and then again on 12.02.2014 for
production of original documents. On both those days the PO could neither produce the original
documents nor authenticated documents. Finally, the Enquiry Officer gave one more last
opportunity but again he failed to produce them, therefore, no hearing could take place. Again,
when the matter was fixed on 19.03.2014, no hearing could take place for non-production of
authenticated documents. Finally, on 26.03.2014 the PO informed the Enquiry Officer that neither
he has been able to obtain the original documents nor he has information about their present
location. Thereafter, the PO himself was absent on 02.04.2014. On the next date of hearing, i.e.,
07.05.2014 the Enquiry Officer was absent.

5. As the enquiry proceedings was being dragged on indefinitely, as submitted above, the applicant
has filed this Original Application seeking the following reliefs:-

(i) May direct the Respondents to quash and set aside the impugned Departmental enquiry
initiated vide impugned charge sheet dated 24.08.2012 in view of the statement of the Attestator of
RUD dated 03.12.2013 and also keeping in view delay and latches in issuing the charge sheet based
on mere photocopies;

(ii) may quash and set aside the impugned Memorandum of charge sheet dated 24.08.2012 in view
of the statement of the Attestator of RUD dated 03.12.2013 and the opinion of Enquiry Officer in its
daily order sheet dated 19.12.2013 wherein it is held that in absence of originals of relied upon
documents this enquiry would be closed as a case of no evidence;

(iii) may direct the Respondents to consider the Applicant to the post of Assistant Commissioner
(Excise and Customs) with all consequential benefits along with seniority; and

(iv) may allow the present OA with costs in favour of Applicant .

6. The contention of the Applicant s counsel is that no original documents were actually there and
the relied upon documents are simply the forged documents as Shri M.I.J. Michael, Commissioner
has already gone into the drawback claim over and above the initial claim and observed that it was
not possible for the custom officials to create head 98.01 and other under the head 9801 . He has
also observed that the Expert Committee has observed that head 98.01 had been fraudulently
created in the system from the back end and it was not possible for the custom officers to create

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the same from the front end or to enter in the system from the back end to create the head.
Thus shipping bills could have been misused by the NIC persons and it was not custom officials to
have committed such crime. The relevant part of his report sent to the Additional Commissioner
(Vigilance) vide letter No.C.VIII(Air-Cus) Vig/IPR/50/10/ 3064 dated 20.05.2011 is reproduced as
under:-

š. As you are aware that the case pertains to wrongful payment of supplementary drawback claim
through EDI system. The allegations against the officers in brief, may be seen at 10.20 to 10.22 of
the CBI report. Out of 116 shipping bills that were investigated, in only 72 three was a real loss to
exchequer. In these 72 SBs, the CBI report, there was increase in the quantity of pieces which was
given in the Supplementary Duty Drawback (SDD) over and above the initial claim (which was the
only amount admissible to the exporters). Under the category there were two types of Shipping Bills,
falling under the head 98.01 and other under the head 9801.

3. The CBI in paragraph 10.21 states that the head 98.01 is an invalid head which does not exit in the
System but was created only for the purpose of giving undue benefits to exporter. The CBI goes on to
state that culpability of granting supplementary drawback on the bills under this category lies only
with NIC officials namely Pradeep Agarwal. They have quoted no Expert Committee report (copy
enclosed) which came out with a finding that head 98.01 had been fraudulently created in the
system from the back end and it was not possible for Customs Officers to create the same from
the fort end or to enter in the system from the back end to create the head. These Shipping Bills
could only have been misused by the NIC persons. It has been not possible for any Customs officer
working from the fort end to have committed the crime. The case these confines itself to the
Shipping bills where DBK was granted under 9801.

4. For the remaining bills under the head 9801 the CBI report hold the expert committee has
opined that theoretically, the bills could have been passed either from back end or from front end
but in practice, it would be nearly impossible to pass these bills from the back end without leaving
any trace of or evidence in the linked table. Since the committee could not discover any such
evidence in the linked table therefore the culpability for granting SDD on these bills lies with the
Customs Officials. These along with the evidence of witnesses like Rajesh who have admitted paying
bribe to Customs officers make their involvement only because there was no evidence of changes in
the inked table and because of an allegation by those already proved to have been involved that
bribe money was paid to customs officers. This conclusion is faulty as certain other evidence has
been considered.

(a) The EDI system was developed by NIC and amended by them. The Customs Officers only have a
user interface through which they can make pre-defined entries which use the already fed data in
the computer system. The fed in data is the export declaration made by the exporters as per the
shipping bills at the time of report. The Superintendent or Assistant Commissioner cannot change
the date base. Part of data base is the FOB value, quantity and draw back head which is declared by
exporters at the time of export and confirmed by Customs at the time of giving initial draw back. The
program does not allow the FOB value to be changed post exports. Changing the draw back quantity
and rate per piece can be done from front end, but not the FOB value or quantity of goods. Changing

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the draw back head to 9801 is possible Customs official (paragraph 11 of technical report). All the
Customs officers have limited pre-defined access to the data base through an application bases on
pre-defined roles and they cannot access the data base through SQL commands.

(b) All the money, whether correct or incorrect, has been transferred to the bank through back end
using FTP; as the front end module for money transfer to bank had certain technical problems. This
had to done only by NIC officials (paragraph 10 of technical report).

) The system for the purpose of granting SDD claims is not pre-designed or pre-specified to allow
the Superintendent or the AC to increase the draw quantity of export goods exported by using menu
and login ID.

(d) Shipping bills mentioned at Sl. 1 to 7 of paragraphs 10.17 of the CBI report being more than two
years old; were in remote history; and cannot be viewed by any Customs officials and brought in to
the pending queue without help of an NIC official.

(e) The NIC official Sh. Pradeep Agarwal had time from 19.07.2006, when the CBI case was filed;
until 6.9.06 when he was barred entry to EDI system, to make any change he wished in the
computer record. Therefore, merely because there were no records when committee investigated on
20.11.07, does not prove that the evidence was not deleted by him during the time when he had
unrestricted access.

(f) The Audit function of the Oracle software had been switched off which could only be done by
NIC. This Audit trails would have enabled the amendments in the databse to be traced to a
particular login ID( paragraph 5 technical report).

(g) The system of granting SDD was that an application would be made by the exporter, with
evidence which could form a file be given a token no. This system at this point was paper based and
not computerized. After check by Superintendent and Assistant Commissioner, it would be entered
in the computer. There is no paper record, which could mean that the document was never produced
to Customs.

(h) Shri Pradeep Agarwal had disk and pend drive with the IDs and password of all Customs officers
which was found when his residence was searched. He also had a conversion formula for changing
the draw back head from 9801 to 98.01.

(i) The Customs officers are not supposed to have knowledge of SQL to access the data base.

(j) During the operation conducted by CBI, it was observed that the accused Pradeep Agarwal and
Ashsish Saxena of NIC demonstrated that they could put any name against any transfer of money.

5. The above facts make it clear that Pradeep Agarwal of NIC must have been involved in payment of
the fraudulent SDD as the Customs Officer could not have used the system to pay the fraudulent
amount without his assistance. There is no paper record which means that the documents were

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never produced to Customs. The second fact on the basis of which responsibility is fastened on the
Customs officer is the allegation by the co-accused that they had paid some bribe money to the
officers. The allegation by Sh. Rajesh Kumar relied upon is dated 9.10.09; but in earlier statement
dated 24.01.07 before the Metropolitan Magistrate under Section 164 of the CR.P.C. in which he did
not allege giving a bribe to the Customs officers. The other persons are co-accused and their
statements cannot be relied upon.

6. In addition in para 10.24.1 the CBI has alleged that Sh. B.D Singhal was involved in processing of
24 SDD and 8 claims under para 10.17 of the report . Out of these 16 SDD claims are related to the
head 98.01 which have been proved to have been done by the NIC officials only. The remaining 15
SDD claims passed under the head 9801 were fraudulent in that quantity in original shipping bills
were altered in and the percentage draw back rate was changed to the per piece draw back rate. As
already explained above, it is not possible for Customs official to make this change from front end.
CBI has further alleges that B.D Singhal took a bribe of Rs.10000/- from Shri Mahipal Singh, draw
back agent from passing 9 SDD claims of M/s Nissie India Agencies. However, none of these 9
shipping bills of Nissie India Agencies were passed by Shri B.D. Singhal. The statement is therefore
false. Also the statement of Sh. Rajesh Kumar is general and applies to Superintendent and
Inspectors of Customs not to the ACT. The scroll is signed by this officer containing details of the
shipping bills at issue. However a scroll covers over a thousand bills each and therefore it can be
clearly seen that the officer cannot check each item individually.

7. Given the facts above, it appears that Customs officers were not involved. It any misconduct is to
be attributed to them, it is in giving their login and password to the NIC officers. Therefore, it
appears that the major penalty proposed against the said officer is not commensurate with the
negligence committed by them. Hence, it is proposed that the matter may please be reconsidered .

7. Learned counsel for the Applicant has also submitted that the Department of Revenue, Central
Board of Excise and Customs vide their letter No.F.C-14010/3/2011-Ad.V dated 24.02.2011 itself
has issued clear directions to all the Director Generals/Chief Commissioners of Customs, Central
Excise and Service Tax Zones that the Disciplinary Authority should not proceed to conduct the
enquiry till all efforts are made to locate the original documents. The said letter is reproduced as
under:-

F. No.C-14010/3/2011-Ad. V Government of India Ministry of Finance Department of Revenue

Central Board of Excise & Customs (Ad.V. Section) 6th Floor, C-Wingh, Hudco Vishala Bldg, Bhikaji
Cama Place, New Delhi Dated the 24th February, 2011 To All Director Generals All Chief
Commissioners of Customs, Central Excise & Service Tax Zones The Narcotics Commissioner
Directorate of Publicity & Public Relations Sub: Xerox copies in departmental inquiry under CCS
(CCA) Rules 1965- regarding Sir/Madam, It is a settled procedure that where a document is
required to be relied upon in a departmental inquiry under CCS (CCA) Rules, 1965, such document
should be either the original document or an authenticated copy thereof. Where an authenticated
copy of the document is to be exhibited, the original document should be readily available in the
custody of an authority such as CBI/Investing agency or the Commissioner concerned so that in the
event of the charged officer seeking inspection of the original documents, such Inspection can be

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arranged.

However, in a number of instances, it has been noticed in the Board that the proceedings in the field
formations are being routinely conducted on the basis of the unauthenticated Xerox copies only,
either because the original documents are not available or are tied up in a court of law. It is clarified
that such a course of action is not permissible, if the original documents are tied up in a court of law,
the CBI/Investigating agency which had taken possession of the original documents should be asked
to authenticate the documents. Its assistance may also be taken for getting the original documents
in custody of the court inspected by the charged officer by making an appropriate application for
inspection in the court, if the charged officer so insists. If the original documents are otherwise not
in custody of Court/CBI/Investigation agency but can still not be located, then the disciplinary
authority should not proceed to conduct the inquiry till out efforts are made to locate the original
documents.

It is also mentioned that the UPSC, while considering a case referred to it for advice, invariably
insists on the original /authenticated copies of the documents and does not entertain a proposal till
all the case records/documents are either in original or duly authenticated copies thereof. In a
number of cases, the proposals have not been finalized so far as the UPSC has returned the
proposals on the above considerations and in a the absence of the original documents, copies thereof
taken on record in the inquiry cannot be authenticated. These cases include cases of retired Group
B, C and D employees under Rule 9 of CCS (Pension) Rules, 1972 as also cases of Appeal /revision of
such category of employees.

It is, therefore urged that disciplinary authorities may ensure that departmental proceedings are
based only on regional authenticated copies of the relied upon documents. It may also be ensured
that while making a reference to the DGoV /Board bringing out alleged irregularities in a case
involving a Gr.A officer or seeking first stage4 advice in respect of a Gr B officer or seeking sanction
of the President under Rule 9 for initiating action against a retired employee, it must be ensured
that only authenticated copies of the documents sought to be relied upon are sent for consideration.
Any proposal accompanied by only Xerox copies will not be considered and will be returned without
any examination.

Yours faithfully (Vijay Kumar) Deputy Secretary to the Govt. of India .

8. Learned counsel has also referred to Department of Personnel and Training U.O. Note
No.1459/2000-ADV.I dated 22.08.2000 addressed to the Department of Revenue (CBEC) wherein
it has been held that the legal position is that the copies can be admissible during inquiry if (i) loss of
the original document is proved, and (ii) the copy produced is proved to be the correct copy (Anand
Behari Lal. V. Dinshaw & Co., AIR 1946 PC 24). The said UO Note is also reproduced as under:-

Department of Personnel and Training AVD.I Section Reference Department of Revenue

communication No. 5266/99-Ad.V dated 12th May, 2000

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2. In cases where the original documents are lost, the legal position is that the copies can be
admissible during inquiry if- (i) loss of the original document is proved, and (ii) the copy produced
is proved to be the correct copy (Anand Behari Lal. V. Dinshaw & Co., AIR 1946 PC 24). In view of
the above, the inquiring authority may take a view in the matter keeping in view the legal position
indicated above, and hold the inquiry accordingly. Department of Revenue may be advised to
consult Ministry of Law also in this matter.

This issues with the approval of AS (S&V) (C.O. Rajan) Under Secretary Department of Revenue
(CBEC) (Shri Harbans Singh, Deputy Secretary), Jeevan Deep Building, New Delhi.

_____________________________ DOPT UO No.1459/2000-AVD.I dated 22.08.2000 .

9. Respondents have filed their reply. They have not disputed the facts as stated by the Applicant.
However, the learned counsel for the Respondents has stated that the Enquiry Officer should be
allowed to complete the enquiry and submit his report to the Disciplinary Authority for passing
appropriate orders in the matter.

10. We have heard the learned counsel for the Applicant Ms. Jaswinder Kaur and the learned
counsel for the Respondents Shri Rajeev Kumar. In a departmental proceedings it is essential that
the Applicant should be given adequate opportunity to defend his case. Denial of the same is against
the principles of natural justice. The Applicant can defend his case effectively only if the relied upon
documents are supplied to him and allow him to verify those documents as to whether those
documents are genuine. In this case, the Applicant s contention is that the relied upon documents
are not genuine and that is the reason why the Respondents are not making their originals available.
It is seen that the Commissioner of the Respondents-Department has also in his report submitted
that the alleged misconduct could not have been committed by the customs officials but it could
have been possibly done by the NIC officials. Therefore, we find sufficient justification in the
contention of the Applicant that the Respondents are not supplying the original documents because
they were not in existence.

The Apex Court in the case of State of M.P. Vs. Chintaman Sadisiv Waishampayan AIR 1961 SC 1623
held that the relevant documents cannot be denied to the charge sheeted officer for cross-examining
the witness. The relevant part of the said judgment reads as under:-

Where the charge sheeted officer was not supplied with copies of relevant documents to which he
is entitled, that effective exercise of the right to cross examine the witness was denied by the enquiry
officer .

Again, the Apex Court in the case of Trilok Nath Vs. U.O.I. SLR (SC) 759 held as under:-

the public servant so requires for his defence he has to be furnished with copies of all the relevant
documents, i.e., Documents sought to be relied upon by the IO or required by the public servant for
his defence. The rationale for making available the documents required by the delinquent officer is
that it is indispensable for putting forward effectively his defence. Failure to supply these materials

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would tantamount to denial of reasonable opportunity to the applicant to defend himself and
vitiates the entire proceedings .

11. Even otherwise, the alleged misconduct relates to the period from 21.07.2005 to 21.02.2006
while the Applicant was posted in the Drawback Section in the office of the Import and General,
New Customs House ( NCH for short), Delhi. The impugned Memorandum proposing to hold an
enquiry against him under Rule 14 of the CCS(CCA) Rules, 1965 was issued to him after a delay of
over six years. One of the prejudicial consequences of such delay is that the Disciplinary Authority
would not be in a position to muster the relied upon documents as in the present case and get the
witnesses who are concerned with those documents. The Apex Court in the case of State of Madhya
Pradesh Vs. Bani Singh and Another 1991 (Supp) SCC 738 held as under:-

There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are
also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this
stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we
dismiss this appeal .

In State of Andhra Pradesh Vs. N. Radhakrishnan 1998 (4) SCC 154, it was held as under:-

It is not possible to lay down any pre-determined principles applicable to all cases and in all
situations where there is delay in concluding the disciplinary proceedings. Whether on that ground
the disciplinary proceedings are to be terminated each case has to be examined on the facts and
circumstances in that case. the essence of the matter is that the court has to take into consideration
all relevant factors and to balance and weight them to determine if it is in the interest of clean and
honest administration that the disciplinary proceedings should be allowed to terminate after delay
particularly when delay is abnormal and there is no explanation for the delay. The delinquent
employee has a right that disciplinary proceedings against him are concluded expeditiously and he is
not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged
without any fault on his part in delaying the proceedings. In considering whether delay has vitiated
the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on
what account the delay has occurred. if the delay is unexplained prejudice to the delinquent
employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is
serious in pursuing the charges against its employee. It is the basic principle of administrative
justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently
and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed.
Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but
then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that
he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings.
Ultimately, the court is to balance these two diverse consideration. In the present case we find that
without any reference to records merely on the report of the Director General, Anti-Corruption
Bureau, charges were framed against the respondent and ten others, all in verbatim and without
particularizing the role played by each of the officers charged. There were four charges against the
respondent. With three of them he was not concerned. He offered explanation regarding the fourth
charge but the disciplinary authority did not examine the same nor did it choose to appoint any

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inquiry officer even assuming that action was validly being initiated under 1991 Rules. There is no
explanation whatsoever for delay in concluding the inquiry proceedings all these years. The case
depended on records of the Department only and Director General, Anti Corruption bureau had
pointed out that no witnesses ad been examined before he gave his report. The Inquiry Officers, who
had been appointed on after the other, had just to examine the records to see if the alleged
deviations and constructions were illegal and unauthorised and then as to who was responsible for
condoning or approving the same against the bye-laws. It is nobody's case that respondent at any
stage tried to obstruct or delay the inquiry proceedings. The Tribunal rightly did not accept the
explanations of the state as to why delay occurred. In fact there was hardly any explanation worth
consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated
July 31, 1995 and directing the state to promote the respondent as per recommendation of the DPC
ignoring memos dated October 27, 1995 and June 1, 1996. the Tribunal rightly did not quash these
two later memos. Accordingly we do not find any merit in the appeal. It is dismissed with costs .

In P.V. Mahadevan Vs. M.D., T.N. Housing Board 2005 (6) SCC 636, it was held as under:-

This Court held that there was hardly any explanation worth consideration as to why the delay
occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the
charge memo dated 31.7.1995 and directing the State to promote the respondent as per
recommendation of the DPC ignoring memos dated 27.10.1995 and 1.6.1996. Accordingly, the
appeal filed by the State of Andhra Pradesh was dismissed.

Mr. Prabhakar also invited our attention to the affidavit filed by the appellant in support of his case.
It is stated in para 14 of the affidavit that the respondent with the mala fide intention issued the
present charge memo against the appellant even though the alleged incident of issuance of sale deed
was of the year 1990, which was 10 year prior to the issuance of charge memo and that very reason
for issuing charge memo was that the appellant could be detained from promoting to the post of
Chief Engineer of the Housing Board.

The very same ground has been specifically raised in this appeal before this Court wherein it is
stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of
charge memo would render the departmental proceedings vitiated and that in the absence of any
explanation for the inordinate delay in initiating such proceedings of issuance of charge memo
would justify the prayer for quashing the proceedings as made in the writ petition .

In M.V. Bijlani Vs. Union of India & Others 2006 (5) SCC 88, the Apex Court had held the delay in
initiation of departmental proceedings after 6 years and continuance thereof for a further period of 7
years caused prejudice to the delinquent officer. The relevant part of the said judgment is as under:-

™6 .The Tribunal as also the High Court failed to take into consideration that the disciplinary
proceedings were initiated after six years and it continued for a period of seven years and, thus,
initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently
prejudiced to the delinquent officer .

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12. In view of the above position, we are of the considered view that it is only a futile attempt on the
part of the Enquiry Officer to proceed with the enquiry against the Applicant any further. The
Enquiry Officer himself quite fairly and candidly submitted that in the absence of the
originals/certified copies of listed documents being produced by the Presenting Officer and without
giving an opportunity to the Applicant to inspect them and to make his submissions, the enquiry
cannot be proceeded further. We, therefore, find merit in the contention of the Applicant and allow
this OA. Consequently, we quash and set aside the impugned Memorandum of charge sheet dated
24.08.2012 with all consequential benefits. The Respondents shall also pass appropriate orders in
compliance of the aforesaid directions within a period of 2 months from the date of receipt of a copy
of this order.

13. There shall be no order as to costs.

(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)

MEMBER (A) MEMBER (J)

Rakesh

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