B RAJA BABU vs M/o Commerce
- Court
- Central Administrative Tribunal
OA/020/0005/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: HYDERABAD
(Circuit Sitting at Vijayawada)
OA No.020/00005/2017
Reserved on : 22.09.2026
th
Pronounced on : 13 October, 2026
CORAM :
HON'BLE Mr.MANISH GARG, MEMBER (Judl.)
HON'BLE Mr.VARUN SINDHU KUL KAUMUDI, MEMBER (Admn.)
Between :
B.Raja Babu,
S/o Venkatramana, Age 56 yrs,
Occ:Asst. Development Commissioner,
Visakhapatnam Special Economic Zone,
Ministry of Commerce & Industry,
Administrative Building, Duvvada, Visakhapatnam - 530046,
R/o H.No. 48-7-29/6, Srinagar, Market road,
Visakhapatnam-530016. ...Applicant
(By Advocate Mrs.Anita Swain)
1. The Union of India
Represented by Secretary-Commerce,
Ministry of Commerce and Industry,
Udyog Bhavan, New Delhi-11001.
2. Development commissioner and disciplinary authority,
Visakhapatnam Special Economic zone,
Ministry of Commerce and Industry,
Administrative Building, Duvvada,
Visakhapatnam - 530046. ...Respondents
(By Advocate : Mr.V.Vinod Kumar, Sr. PC for CG)
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ORDER
[As per Hon'ble Mr.Manish Garg, Member(J)]
1. In the instant O.A. the applicant seeks following relief:-
“....to call for the record the impugned orders vide orders. No.
A-11/1/2015-SEZ dated 19-6-2016 of the 1st respondent,
appellate authority's rejection order rejecting the appeal,
confirming the penalty order of 2nd respondent, order No.
5(20)/VSEZ/Estt./2010/7710 dt.22/12/2014, who impose the
penalty without supplying the documents, without considering
the explanation and objections submitted by the applicant and
imposed the penalty reduction of time scale of pay for a period of
five years is illegal arbitrary and voilation of CCA and CC&S
rule 1965 and apart from voilation of principle of natural
justice., hence set aside the same orders No. A-11/1/2015-SEZ
dated 19-6-2016 and direct the respondent to restore the pay and
increments and direct the respondents to repay the arrears....”
2. Highlighting the facts of the case, the applicant is aggrieved by the
impugned proceedings and the sole grievance urged by the applicant in the
O.A. is that the necessary documents, which were required to be the
material for the adjudication of the departmental proceedings during the
course of inquiry, have not been provided.
2.1 The learned counsel appearing on behalf of the applicant draws our
attention towards the letter dt. 20.06.2014, requesting for the following
documents:-
(i) A copy of 'in principle' permission to exit from EOU to EPCG
granted to the unit. (which was signed by Ex- ADC Shri. K.
Govinda Rao)
(ii) A copy / copies of relevant full note sheets for above approval,
where the DC /VSEZ has given approval.
(iii) A copy / copies of note sheets approved by the JDC at Sub-Office,
Hyderabad at the time of issue of clarification letter dated
16.2.2009 (singed by Shri T. Purushotham Reddy) issued to Asst.
Commissioner of C&CE, Division-B, Hyd by superseding my
letter dated 12.6.2006.
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2.2 The counsel for the applicant further submits that a communication
was written on 27.05.2013 by the applicant to the Disciplinary Authority, the
reply of which was sent through a letter dt. 06.06.2013, which is as under:-
(iv) “With reference to your letter No. nil dated 27.05.2013 on the
subject cited above and to inform that under Rule 14 of CCS
(CCA) Rules, 1964, once an Inquiry Officer is appointed, the
request for supply of copies of documents if any, should be made to
the Inquiry Officer not to the Disciplinary Authority. However, all
the required documents indicated in Annexure-III relating to
Memorandum No.5(20)/VSEZ/ Estt./2010/2583 dated 02.08.2010
have already been provided.”
2.3 The applicant’s counsel also draws our attention to the fact that the
nd
charge-memo with major penalty was issued on 2 August 2010, wherein there
was one Article of Charge was framed, which reads as under:-
“That the said Shri B.Raja Babu, Asst. Development Commissioner while
functioning in the same capacity during the period from June 2006 till
date, with an ulterior motive to influence the duty calculations in favour
of M/s Uni-Socks (India) Limited, Hyderabad, provided contradictory
information to the Authorities of Customs & Central Excise, Hyderabad
vide letters dated 12-06-2006 & 30-05-2008 with malafide intention
while working in VSEZ, Visakhapatnam and VSEZ-Sub Office,
Hyderabad respectively by misusing his official position and to keep the
Government in dark from his deeds, by altering the contents of afore said
letter dated 30-05-2008 fabricated another letter with same date and
placed as office copy in the relevant file of VSEZ, to cover his acts which
constitutes misconduct of failure to maintain absolute integrity and
devotion to duty and commission of an act unbecoming of a Government
servant, in violation of Rufe 3(1)(i), (ii) & (iii) of the Central Civil
Services (Conduct) Rules, 1964.”
2.4 The list of documents provided along with the charge memo, which
were relied upon by the authority are at Annexure – III, which reads as under:-
1. Letter No. 8/EOU/QPR-88/VSEZ/2006/3692, dated 12-6-2006 issued by
Shri B.Raja Babu, Asst. Development Commissioner to M/s Uni-Socks
(India) Limited, 8-2-618/2/1/1, Flat No.202, Patel Avenue, Road No.11,
Banjara Hills, Hyderabad.
2. Letter No.VIII/12/05-EOU/USIL, dated 29-05-2008 issued by the Asst.
Commissioner of Customs & Central Excise, Hyderabad-I
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Commissionerate, Hyderabad to the Development Commissioner, VSEZ
Visakhapatnam.
3. Letter No. 8/EOU/QPR-88/VSEZ/HYD/2008, dated 30-5-2008 issued by
Shri B.Raja Babu, Asst. Development Commissioner to the Asst.
Commissioner of Customs & Central Excise, Hyderabad-I
Commissionerate, Hyderabad.
4. Letter No. 8/EOU/QPR-88/VSEZ/HYD/2008, dated 30-5-2008 issued by
Shri B.Raja Babu, Asst. Development Commissioner to the Internal EOU
Section, VSEZ, Visakhapatnam.
5. Letter No. VIII/12/2005 EOU, dated 03-02-2009 issued by the Asst.
Commissioner of Customs & Central Excise, Hyderabad I
Commissionerate, Hyderabad to the Asst. Development Commissioner,
VSEZ Sub-Office, Hyderabad.
6. Memorandum No. 8/EOU/QPRS-188/VSEZ/2010/1424, 11-06-2010
issued by the Development Commissioner, VSEZ to Shri B.Raja Babu,
Asst. Development Commissioner.
7. Reply dated 28-06-2010 submitted by Shri B.Raja Babu, Asst.
Development Commissioner to the Development Commissioner, VSEZ.
2.5 List of witnesses by whom the articles of charge framed against Shri
B.Raja Babu, Asst. Development Commissioner, reads as under:-
1. Shri V.Bhaskara Rao, Asst. Development Commissioner, VSEZ,
Visakhapatnam.
2. Shri T.Purushotham Reddy, Asst. Development Commissioner, VSEZ,
Sub-Office Hyderabad.
3. Shri S.Viswanathan, Asst. Commissioner, O/o the Asst. Commissioner of
Customs & CE, Hyderabad-B Division, 8th Floor, Posnett Bhavan,
Ramkote, Hyderabad - 500 001.
4. Smt.K.Padmavathy, Asst. Commissioner, O/o the Asst. Commissioner of
Customs & CE, Hyderabad-B Division, 8th Floor, Posnett Bhavan,
Ramkote, Hyderabad-500 001.
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2.6 The inquiry was conducted and the applicant participated in the
inquiry proceedings. The inquiry report dated 16.06.2014 was submitted by the
respondents, with a copy to the applicant herein.
2.7 The inquiry report held charges against the applicant as proved, which
reads as under:-
The CO stated that he needs certain other documents to defend his case.
The CO has never requested the IO for these documents during the
course of inquiry and such request while replying to the brief of the
Presenting Officer cannot be acceded to particularly when those
documents are not related to the issue under consideration. but only deal
with adjudication Order No. 8/EOU/Adj/QPR-88/VSEZ/2005 dated
20.2.2006 passed by the Development Commissioner for being NFE
negative and the CO's interpretation that the said order considered the
unit to be NFE positive is erroneous. CO'S contention that in Order No
8/EOU/AdJ/QPR-88/VSEZ/2005 dated 20.2.2006, the unit's performance
has been reviewed / adjudicated by the Development Commissioner and
considered overall performance of the unit as Positive NFE and imposed
a fiscal penalty of Rs. 1.00 lakh and allowed the unit to exit from EOU to
EPCG vide his order dated 20th February, 2006 Is erroneous and
factually incorrect. Relevant portion of the said order is reproduced as
under:
i. "I have gone through the total performance of the EOU since
its inception. The unit has effected exports total a tune of
Rs.1176.81 lakhs during the entire period of operation as
against the import of capital goods made for a CIF value of
Rs.556.31 lakhs, import of raw materials, consumables and
spares for a CIF value of Rs. 93.50 lakhs. The unit has effected
total exports during the 1" block of 5 years and has not effected
any exports (or) imports during the 2nd block due to financial
and labour problems. Through the unit has not imported
anything during 2nd block the NFE is running negative
because of amortization of the value of imported capital goods
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over a period of 10 years. Normally achievement of positive
NFE by the unit has to be ensured at the end of 5 years of the
2nd block, but on account of the unit seeking permission to exit
from EOU scheme to switch over to EPCG scheme, the unit has
been issued show cause notice for non achievement of Positive
NFE before allowing the unit to exit from EOU scheme.
Considering the total export performance the EOU which is
much above the value of the imports made by the unit and also
keeping in view of the unit's proposal to switch over to EPCG
Scheme after exit from EOU scheme, in which case the unit is
bound to fulfil the stipulated export obligation under the
scheme after payment of applicable capital goods, further as
the value of the capital goods has been substantially
depreciated on giving effect for such depreciation w.e.f. from
the date of commencement of production and finally in view of
the financial and labour problems being faced by the industry,
which has resulted closer of its operations, I take a liberal view
and impose a fiscal penalty of Rs.1,00,000/- (Rs. One lakh
only) for non achievement of NFE for the period from 1.4.2002
to 31.3.2005 (36 months) in the 2nd block of 5 years".
ii. As seen from the above, In principle permission to exit was
given after imposing fiscal penalty of 1 lakh on the unit for
being NFE negative in the above order. Imposition of penalty
does not render NFE negative unit NFE positive. If overall
performance of the unit is positive as contended by CO, there
would not have been any need for the Development
Commissioner to impose penalty. The adjudication order
covers the entire operational period spanning over both the
block periods and finding in the order is that the unit is NFE
negative due to amortisation of the imported capital goods in
the 2nd block period though the export performance the EOU
which is much above the value of the imports made by the unit.
As seen from the above export performance is different from
NFE status. While holding the unit NFE negative, the order
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considered the fact of the export performance the EOU which is
much above the value of the imports made by the unit as one of
the factors to determine the quantum of penalty imposable on
the unit for being NFE negative This the CO misinterpreted as
the order holding the unit as NFE positive. CO contended that
the Presenting Officer was not appointed as per the norms of
the disciplinary proceedings but not mentioned the norms and
procedures not complied with. This issue was not raised by him
at any point during the course of Inquiry.
iii. The article of charge consists of three components:
(a) with an ulterior motive to influence the duty calculations
in favour of M/s Uni-Socks (India) Limited, Hyderabad,
provided contradictory information to the Authorities of
Customs & Central Excise, Hyderabad vide letters dated
12-06-2006 & 30-05-2008 with malafide intention by
misusing his official position.
(b) to keep the Government in dark from his deeds,, by
altering the contents of afore said letter dated 30-05-
2008 fabricated another letter with same date and placed
as office copy in the relevant file of VSEZ to cover his
acts.
(c) Hence, he while functioning as ADC he failed to
maintain absolute integrity and devotion to duty and
committed an act unbecoming of a Government servant.
He thereby contravened Rule 3(1) (i), (ii)&(iii) of the
Central Civil Services (Conduct) Rules, 1964.
Regarding (a), It is a matter of fact and record that the CO informed
Assistant Commissioner of Central Excise Division B Hyderabad to the
Assistant Commissioner of Central Excise Division B Hyderabad in
terms of his second letter dt 30-5-2008 that the unit has achieved NFEP
of 47.64% and have a positive NFE and for 2001-02, Govt. of India has
declared a blank year the export performance for the subsequent year
i.e., 01.04.2002 to 31.03.2005 (2nd block) has been reviewed and found
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that the unit was defunct during that period and as such no NFE has
been taken into consideration. It is therefore requested to issue No Dues
Certificate and No Objection Certificate for issue of Final Exit Order. It
is also a matter of fact that the above letter of the CO influenced the duty
calculations in favour of M/s Uni-Socks (India) Limited, Hyderabad as
stated by Smt K.Padmavathy, Assistant Commissioner of Central Excise
Division B Hyderabad during the material time and PW4. Further,
furnishing of such contradictory information to the Assistant
Commissioner of Central Excise Division B Hyderabad evidences misuse
of official position by CO, The way and the circumstances in which the
second letter with incorrect information was issued within hours of
issuing the first letter and the fact that copy of the second letter was not
placed in the relevant file shows that the CO acted with ulterior motive
and malafide intention to influence duty calculations. Therefore the
charge stands substantiated.
Regarding (b) it is a matter of fact and record the first letter dt 30-5-2008
stating that the export performance of the unit for the cumulative period
from 01.04.2002 to 31.03.2005 (2nd block) has been reviewed and ofter
having found that there was a negative NFE, the unit was imposed a
fiscal penalty of Rs.1.00 lakh by the Development Commissioner, VSEZ,
though kept in the concerned file, was not sent to the Assistant
Commissioner of Central Excise Division B Hyderabad by the CO. The
second letter informing that the period 12.05.1997 to31.03.2011 (1st
block) has been reviewed and found that the unit has achieved NFEP of
47.64% and have a positive NFE and for 2001-02, Govt. of India has
declared a blank year the export performance for the subsequent year
Le., 01.04.2002 to 31.03.2005 (2nd block) has been reviewed and found
that the unit was defunct during that period and as such no NFE has
been taken into consideration. It is therefore requested to issue No Dues
Certificate and No Objection Certificate for issue of Final Exit Order,
though sent to Assistant Commissioner of Central Excise Division B
Hyderabad, was not kept in the relevant file by the CO. CO himself
admitted in his defence reply that he could not file the copy of the second
letter in the relevant file due to the alleged work load. The contention of
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the CO that he could not keep copy of the second letter in the concerned
file due to work load is not acceptable when he had time issue the second
letter at the request of the unit. Therefore the charge that to keep the
Government in dark from his deeds,, by altering the contents of afore
said letter dated 30-05-2008 fabricated another letter with same date
and placed as office copy in the relevant file of VSEZ to cover his acts
stands substantiated.
Regarding (c) the acts of the CO as discussed (a) and (b) above
constitute failure of the CO to maintain absolute integrity and devotion
to duty and committing an act unbecoming of a Government servant.
FINDINGS
The Charges against CO under Article-I are proved.”
2.8 An interim reply to the Disciplinary Authority on the inquiry was submitted.
Thereafter, the Disciplinary Authority passed order on 22.12.2014 imposing
penalty on the applicant.
2.9 The Disciplinary Authority observed that the Presenting Officer (PO)
submitted that the Inquiry Officer had given the Charged Officer reasonable
opportunities. During the inquiry proceedings, the Inquiry Officer asked the
Charged Officer whether he had received all the copies of the documents/records
relating to the charges framed against him under the relevant articles in the
Memorandum of Charge Sheet(s). The Charged Officer informed the Inquiry
Officer that all the relevant copies/records relating to the charges framed against
him under the relevant articles in the Memorandum of Charge Sheet(s) had been
provided to him, that he had gone through all of them, and that there were no
copies of documents/records left to be provided to him. The Inquiry Officer asked
the Charged Officer whether he had inspected all the relevant records/documents
as indicated in the charge sheet, and whether any documents/records were still to
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be verified/inspected and required any inspection of any additional
documents/records. The Charged Officer informed the Inquiry Officer that he had
verified/inspected all the documents and that there was no need for
verification/inspection of any additional documents/records. The Inquiry Officer
asked the Charged Officer if he would like to engage a Defence Assistant to defend
his case against the charges framed against him. The Charged Officer has clearly
stated that he would not like to engage any Defence Assistant, and he will defend
the case on his own. The Inquiry Officer has asked the Charged Officer whether he
would like to present any additional documents/records and bring in any additional
witness or witnesses in support of his defence. The Charged Officer has informed
that he would not like to present any additional documents/records nor would he
like to bring any additional witness or witnesses in support of his defence.
2.10 Based on the submission made by the applicant before the Disciplinary
Authority in his defence, the Disciplinary Authority passed the following order:-
“In the light of above, I hereby order that Sri Raja Babu's (ADC, VSEZ) pay
should be reduced by two stages in the time scale of pay for a period of five years
with immediate effect and he will not earn increment during the period of above
reduction. However, the above reduction will not have the effect of the postponing
the future increment of his pay.”
2.11 Aggrieved by the same, the applicant made an appeal to the Appellate
Authority vide Appeal dt. 14.06.2015.
2.12 Learned counsel for the applicant draws our attention to the fact that a
specific plea was taken that no documents had been supplied to the charged officer.
Following are the documents which were asked for:-
(i) A copy of 'in principle' permission to exit from EOU to EPCG granted
to the unit. (which was signed by Ex- ADC Shri. K. Govinda Rao)
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(ii) A copy / copies of relevant full note sheets for above approval, where
the DC /VSEZ has given approval.
(iii) A copy / copies of note sheets approved by the JDC at Sub-Office,
Hyderabad at the time of issue of clarification letter dated 16.2.2009
(singed by Shri T. Purushotham Reddy) issued to Asst. Commissioner of
C&CE, Division-B, Hyd by super ceding my letter dated 12.6.2006, wherein
the Asst. Commissioner Customs and Central Excise, Div. B, Hyderabad
was requested to demand the duties along with penalties, if any and not to
allow depreciation from 2002 onwards on capital goods imported / procured
by the unit, as unit was defunct since 2002.
2.13 It is submitted on behalf of the applicant that without considering all
the aspects of non-supplying of the requisite documents, the appeal was
rejected by upholding the order passed by the Disciplinary Authority, which
reads as under:-
“Now, therefore, it is ordered that the penalty of reduction of pay by two
stages in the time scale of pay for a period of five years be imposed on Shri
Raja Babu, ADC, VSEZ with effect from the date of the original order of the
disciplinary authority under Rule 11 (v) of Central Civil Services
(Classification, Control and Appeal) Rules, 1965 with further direction that
the charged officer will not earn increments during the period of above
reduction and that the above reduction will not have the effect of postponing
the future increment of his pay.”
2.14 The counsel for the applicant further submits that the penalty imposed upon
the applicant is disproportionate because the applicant was unable to defend his
case in accordance with the rules, as the documents were not supplied. The
applicant also lost an opportunity to defend his case properly, as the necessary
approval was on record; otherwise, the charges could not have been proved against
the applicant had the documents been supplied to the applicant.
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2.15 Learned Counsel also relies upon the Hon’ble Supreme Court decision
rendered in the case of S. Janaki Iyer Vs. Union of India, vide order dt. 20 May
2025. The relevant paras are as below:-
“21. No prejudice having been caused because of the non supply of
the preliminary Inquiry Report to the Appellant, the plea of violation of the
principles of natural justice would not be available to the Appellant. As a
matter of principle, violation of the principles of justice cannot be on the
touchstone of technical infringement made the basis of setting aside the
action taken by the authority against an employee unless it is established
that grave prejudice has been caused to an employee because of non-supply
of a particular document. Nothing has also come on record which would
indicate that the Appellant had ever sought for the Preliminary Inquiry
Report after the issuance of the charge sheet. Similar would be the position
with regard to the other documents also which are alleged to have not been
supplied to her as the nature and extent of disadvantage or handicap caused
or suffered by the Appellant, in the absence of the documents, is missing in
the departmental proceedings or the pleadings.
22. No grounds have been laid down indicating the prejudice which
has been caused to her either during the inquiry or at the stage of projecting
her response to the show cause notice given by the disciplinary authority.
Mere assertion that some documents have not been supplied or even
mentioning the said documents would not be enough unless the
consequential prejudice which would or has been caused to a delinquent
employee is putforth.
23. The Court is not bound to simply accept an assertion of a
delinquent employee and proceed to question the disciplinary proceedings
without being satisfied with regard to any prejudice having been caused to
the employee.
24. The position in law on this aspect as has been culled out by the
Constitution Bench of the Supreme Court in the case of Managing Director,
ECIL, Hyderabad and Others vs. B. Karunakar and Others1 followed and
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explained thereafter by this Court expounded the doctrines of reasonable
opportunity and natural justice to have been conceived and evolved not as a
mechanical or a ritualistic formality, but as substantive principles intended
to safeguard the rule of law and to facilitate the assertion of legitimate
rights by individuals. It was categorically held that these principles are not
to be invoked as mere procedural sacred words that have magical effect
when said on every occasion, irrespective of context. The Court underscored
the aspect as to whether prejudice has in fact been occasioned to an
employee by the non-supply of the inquiry report which must be assessed
with reference to the specific facts and circumstances of each case. Upon
such assessment, if it is evident that no different outcome would have
emerged even after the inquiry report or documents had been furnished, to
reinstate the employee and grant him consequential benefits in such
situation would amount to a distortion of justice. In other words, it would
amount to conferring a premium upon misconduct and to stretch the
doctrine of natural justice to an illogical and unwarranted extent. Such an
expansive and indiscriminate application of the principle would,
paradoxically, undermine the very concept of justice it seeks to uphold.
25. Similar is the position with regard to the plea of prolongation
of the Inquiry for 9 years in concluding the same. The explanation as has
been given by the Respondents with regard to the time consumed during the
inquiry is fully justified as it had to be and actually was held at different
places on different occasions as the matter related to different stations
pertaining to the transfer orders of eleven teachers which were in question.
The availability of the relevant documents and other aspects including the
witnesses so posted etc. at different stations is also taken as a ground in
explanation. It is not the case of the Appellant that she was not provided
with appropriate subsistence allowances or facilities for attending the
Inquiry proceedings which would have in any manner caused hindrance or
difficulty to participate in or attend the same.
26. Mere delay during the inquiry proceedings, when it is
explained with regard to the time taken for the inquiry to conclude and that
too justifying the same with no prejudice having been caused, cannot be
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made the basis for vitiating the departmental proceedings. Inordinate or
unexplained delay in the departmental proceedings may be a justifiable
ground if tampered with prejudice having been established to have been
caused to the delinquent employee in the said process for interference by the
Court. In the present case, the same is absent and therefore the said plea of
delay fails.
27. The other ground which has been pressed into service is with
regard to noncompliance of the statutory rules in the departmental
proceedings which were held against the Appellant. Specific reference has
been made to Rule 15(2), CCS (CCS) Rules, 1965 which reads as follows:
“The disciplinary authority shall forward or cause to be
forwarded a copy of the report of the inquiry, if any, held by the
disciplinary authority or where the disciplinary authority is not
the inquiring authority, a copy of the report of the inquiring
authority together with its own tentative reasons for
disagreement, if any, with the findings of inquiring authority on
any article of charge to the Government servant who shall be
required to submit, if he so desires, his written representation or
submission to the disciplinary authority within fifteen days,
irrespective of whether the report is favourable or not to the
Government servant.”
28. A perusal of the above rule would show that in case the
disciplinary authority disagrees with the findings returned by the inquiry
authority, it would, along with the inquiry report forward its own tentative
reasons for disagreement with the findings of the inquiry authority calling
upon the delinquent employee to submit his representation/response to the
disciplinary authority. The said procedure has been duly complied with and
followed in the present case. The perusal of the inquiry report indicates that
not only has the inquiring authority come to a definite conclusion that the
transfer order was fake but has also concluded that the charges have been
proved against her meaning thereby that she had managed to get herself
transferred. Merely because the person through whom she has been able to
procure or manage to secure the fake transfer order has not come in the
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findings of the Inquiry Officer would not lead to exoneration of the
Appellant. There is nothing on record which would indicate that the Inquiry
Officer had given a clean chit to the Appellant. It is also apparent from the
records that the Appellant is the sole beneficiary of the said transfer order. It
has come on record and in the Departmental Inquiry as well that eleven
other teachers whose names find mention in the transfer order in question
dated 01.10.1991 had been transferred by different earlier orders and their
transfer orders were not dependent solely or relatable to the order in issue.
The plea thus of the Appellant on this count is also unsustainable.
29. As regards the submission that the findings as recorded by the
Inquiry Officer with regard to the transfer order being fake are based on no
evidence which could have been the only ground on which interference by
the Court would be permissible also falls flat with an answer to the
questionnaire served upon Shri VK Jain, the Assistant Commissioner in
Kendriya Vidyalaya Sanghathan (Headquarters), New Delhi who is said to
be the person under whose signatures the order dated 01.10.1991 was
passed, when he had responded that the signatures on the alleged order
dated 01.10.1991 had not been signed by him and it was not his signature.
The said transfer order was fake which assertion when put to test in the
cross-examination in the departmental inquiry has not been shaken where
again the said fact has been reiterated. When the alleged author himself
denying the said signatures on the document and has gone to the extent of
saying that he had not issued the said order, the requirements of the
statutory rules in a departmental inquiry stand fulfilled. What has been
stated above is that these are not criminal proceedings but departmental
proceedings where the test with regard to the proof on the basis of evidence
is different. The preponderance and probability being the touchstone in the
departmental proceedings the same having been fulfilled, the plea as has
been sought to be raised by the Appellant cannot sustain.
30. Another argument which has been raised by the Appellant is that
the transfer order dated 01.10.1991, which had been issued with an
intention to benefit Ms. Sandhya Jain in place of the Appellant at Mumbai at
the behest of Assistant Commissioner Kendriya Vidyalaya Sanghathan,
Bombay Region Mr. RK Jain appointed the daughter of Assistant
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Commissioner, Kendriya Vidyalaya Sanghathan (Headquarters), New Delhi.
The Appellant argued that this action was actuated by mala fides and driven
by an oblique motive, and therefore, the transfer order was arbitrary and
not in accordance with law.
31. The said plea was neither taken before the CAT nor pleaded in
the writ petition. The same, when pressed into service orally, was rejected by
the High Court on the ground of non-pleading of the same as also non-
impleadment of the parties against whom mala fide were being pressed into
service. For the same reason before this Court the said plea, although
having been sought to be projected, cannot be permitted. It would not be out
of way to mention that here again in this appeal, the said persons are not
parties.
32. In view of the above, there has been no violation of any statutory
rules nor has there been violation of principles of natural justice with their
being ample evidence to establish with regard to the transfer order dated
01.10.1991 being fake which fulfilled the requirements as have been laid
down in the statutory rules as well as the law finalized by this Court. The
Impugned Orders being in accordance with law do not call for any
interference.
33. The appeal being devoid of merit stands dismissed. “
3. Opposing the grant of relief, the learned counsel appearing for the
respondents relied on the averments made in the reply statement and submitted to
this Tribunal that all the requisite formalities had been duly complied with.
3.1 It was further contended that the documents sought by the applicant were an
afterthought, having been requested only after the conclusion of the inquiry. The
applicant had never sought production of the said documents at any stage during
the cross-examination, nor had any question been put to the concerned authority by
the charged officer seeking their production. Had any specific request been made
for the production of the said documents, the authority could have taken the
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necessary steps in that regard. Even an adverse inference could have been drawn
against the applicant for the non-production of the documents by the respondents.
3.2 The respondents’ counsel further submits that the relevancy of the
documents has to be adjudicated in the case of the present matter at the stage of
inquiry proceedings only and not at the subsequent stage.
3.3 The respondents’ counsel further submits that the respondents rely upon
various decisions rendered by the Hon’ble Apex Court in the case of B C
Chaturvedi Vs. Union of India and Ors .
4. Heard the counsel for the parties and perused the records of the case.
5. ANALYSIS
5.1 The issues to be examined in the present matter are –
(i) What specific disadvantage the applicant suffered due to the alleged
failure to furnish the documents; and whether this lack of document
provision consequently breached the principles of natural justice, thereby
invalidating the inquiry process.
5.2 To adjudicate upon the aforesaid issue before us, we have to examine the
relevancy of the documents in the context of the charges framed against the
applicant.
5.3 The Article of Charge, framed vide charge memo dt.02.08.2010, against the
applicant, was as under:
“Article I”
That the said Shri B. Raja Babu, Asst. Development Commissioner
while functioning in the same capacity during the period from June
2006 till date, with an ulterior motive to influence the duty
calculations in favour of M/s. Uni-Socks (India) Limited,
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Hyderabad , provided contradictory information to the Authorities of
Customs & Central Excise, Hyderabad vide letters dated 12-06-2006
& 30-05-2008 with malafide intention while working in VSEZ,
Visakhapatnam and VSEZ-Sub Office, Hyderabad respectively by
misusing his official position and to keep the Government in dark
from his deeds, by altering the contents of aforesaid letter dated 30-
05-2008 fabricated another letter with same date and placed as office
copy in the relevant file of VSEZ to cover his acts which constitutes
misconduct of failure to maintain absolute integrity and devotion to
duty and commission of an act unbecoming of a Government servant,
in violation of Rule 3(1)(i), (ii) & (iii) of the Central Civil Services
(Conduct) Rules, 1964.”
5.4 The case of the applicant hinges upon the fact that, based upon the aforesaid
charge, it has been highlighted that ‘in principle’ permission to exit from EOU to
EPCG Scheme was granted vide letter dt. 28.02.2006, which was not supplied to
him along with the charge sheet. The fact of the matter is that it is an admitted
position that the reliance placed upon the said document was premised on the fact
that the charged officer, on his own volition, had issued a letter dt. 12.06.2006,
which is the subject matter of the Article of Charge, highlighting the fact that he
misused his official position and kept the Government in the dark from his deeds,
in altering the letter dt. 30.05.2008.
5.5 It is also to be noticed that whether any question pertaining to the
documents sought by the applicant was put in cross-examination to either of the
witnesses, which is sought to be relied upon by him, in his defence. It is also
noticed that the competent authority, as Disciplinary Authority, made the
following observations in his order:
“xxxx The Inquiry Officer has asked the charged officer whether he
has inspected all the relevant records/ documents as indicated in the
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charge sheet and if any documents/ records are still to be verified/
inspected and requires any inspection of any additional documents/
records. The Charged Officer has informed that he has verified/
inspected all the documents and there is no need of
verification/inspection of any additional documents/ records. The
Inquiry Officer has asked the Charged Officer if he would like to
engage Defence Assistant to defend his case against the charges
framed against him. The Charged Officer has clearly stated that he
would not like to engage any Defence Assistant and he will defend the
case on his own. The Inquiry Officer has asked the Charged Officer
that if he would like to present any additional documents/records and
bring in any additional witness or witnesses in support of his defence.
The Charged Officer has informed that he would not like to present
any additional documents/ records nor he would like to bring in any
additional witnesses or witnesses in support of his defence.”
5.6 It is also observed that the Disciplinary Authority in greater detail dealt with
the aspect of the self-proclaimed letter dt. 12.06.2000 by observing as under:
“6) The IO in his report stated that Article I of the Memorandum alleges
that the CO Shri Raja Babu, Asst. Development Commissioner while
functioning in the capacity during the period from June 2006 till the date of
issue of Charge Memorandum, with an ulterior motive to influence the duty
calculations in favour of M/s Uni-Socks (India) Limited, Hyderabad,
provided contradictory information to the Authorities of Customs & Central
Excise, Hyderabad vide letters dated 12-06-2006 & 30-05-2008 with
malafide intention while working in VSEZ, Visakhapatnam and SEZ-Sub
Office, Hyderabad respectively by misusing his official position and to keep
the Government in dark from his deeds, by altering the contents of afore
said letter dated 30-05-2008 fabricated another letter with same date and
placed as office copy in the relevant file of VSEZ to cover his acts. Hence,
he while functioning as ADC he failed to maintain absolute integrity and
devotion to duty and committed an act unbecoming of a Government servant.
He thereby contravened Rule 3(1)(i), (ii) & (iii) of the Central Civil Services
(Conduct) Rules, 1964.
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6.1) This is evident from the record that
(a) Letter dated 12.06.2006 signed by Shri B.Raja Babu, ADC, VSEZ
was received in the Division Office mentioning that the value of the
Capital Goods and the export took place and the adjudication
initiated for the defunct period since 2002 and that a fiscal penalty of
Rs.1,00,000/- has been imposed on the unit for non-achievement of
positive NFE.
(b) A signed letter dated: 30.05.2008 signed by Shri B.Raja Babu,
ADC was received in the Division office informing that for the period
12.05.1997 to 31.03.2011 (1st block) has been reviewed and found
that the unit has achieved NFEP of 47.64% and have a positive NFE
and for 2001-02, that Govt. of India has declared a blank year the
export; that performance for the subsequent year i.e., 01.04.2002 to
31.03.2005 (2nd block) has been reviewed and found that the unit was
defunct during that period and as such no NFE has been taken into
consideration. It is therefore requested to issue No Dues Certificate
and No Objection Certificate for issue of Final Exit Order.
(c) Further to that, the Division office has not received any letter with
the same date: 30.05.2008 signed by Shri B.Raja Babu, ADC inter-
alia informing that "that the export performance of the unit for the
cumulative period from 01.04.2002 to 31.03.2005 (2nd block) has
been reviewed and after having found that there was a negative NFE,
the unit was imposed a fiscal penalty of Rs.1.00 lakh by the
Development Commissioner, VSEZ.
(d) On the basis of the letter dated: 30.05.2008 issued by Shri B.Raja
Babu (which is received in the Division office) it was assumed that the
unit has positive NFE and the depreciation benefit has been extended
to M/s Unisocks Limited while determining the duty payable.
(e) The charged officer himself admitted that he is the author of the
both the above letters dated 30-5-2008 addressed to the Assistant
Commissioner of Central Excise Division B Hyderabad, the first letter
having been issued in the forenoon and the second letter in the
afternoon.”
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5.7 Interestingly enough, as per his own admission, vide his communication dt.
30.06.2014, in response to the charge memo dt.02.08.2010, the applicant has stated
as under:
“14. During the course of inquiry, I was silent on the letter dated
12.6.2006 and NFE during the sick period was not recorded/ discussed
sincerity during the course of the inquiry by the Presenting Officer and
the Inquiry Officer . These officers should have been fair with me in terms
of the CCS (CCA) Rules, particularly since I have been charged under Rule
14.
15. Further, a feeder cadre officer, who is in the line of promotion after
being Charged Officer, shall not be considered for appointment as
Presenting Officer in this case, in terms of Disciplinary Rules, which is
against the principles of natural justice. This issue is being brought to the
notice of the Disciplinary Authority personally and in writing also.
16. To avoid differences between the two Departments, I have also
cooperated in the proceedings to close this case. I have submitted in the
inquiry that the Development Commissioner, VESZ has taken the overall
performance of the unit and considered that the Unit has achieved NFE
positive and granting „in principle‟ permission to exit from EOU to EPCG
Scheme. This has not been considered by the Presenting Officer, nor
verified the records and presented the case properly. His intention was to
put me into trouble and blame my integrity.
A HUMBLE REQUEST TO THE DISCIPLINARY AUTHORITY:
1. The Disciplinary Authority may kindly go through my submissions
and a reference may kindly be made to the Respected Chief Commissioner,
Customs and Central Excise Authorities, Hyderabad, if necessary.
2. The Disciplinary Authority is requested to look into my letter dated
12.06.2006, where I requested the Asst. Commissioner of Customs and
Central Excise, Division B to demand the duties along with the penalties, if
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any and not to allow depreciation from 2002 onwards on the capital goods
imported/ procured by the unit, as the unit was defunct since, 2002.
3. The Disciplinary Authority may kindly look into the request of the
Asst. Commissioner, Customs & Central Excise letter dated 29.5.2008 by
seeking clarification on the unachieved percentage of NFE for demanding
duty, even when they have been forwarded the following clear documents by
VSEZ:
(a) Vide my letter 12.6.2006, it was clear the AC, C & CE was
requested to demand the duty from 2002 onwards due to defunct of
the unit and not to allow depreciation from 2002 onwards on the
capital goods imported/ procured indigenously by the unit, as the unit
was defunct since, 2002.
(b) Wherein, she was also informed that the unit was imposed a
fiscal penalty of Rs.1,00,000/- for non achievement of NFE during
2002-2005.
(c) The Central Excise Authorities were issued „in principle‟
permission to exit from EOU to EPCG Scheme vide VSEZ letter dated
28.2.2006. (DC/VSEZ has considered as the unit achieved positive
NFE based on the over all performance for a period of 10 years, since
Letter of Permission was issued for a period of 10 years)
(d) The Central Excise Authorities were provided a copy of
Adjudication Order passed by the Development Commissioner, VSEZ
vide order dated 20.02.2006.
Based on the above three documents, the Ld. Disciplinary Authority
can decide whether the depreciation has to be given to the unit or otherwise,
by the Customs and Central Excise Department.”
5.8 There is no denial of the fact that it is an admitted position, as reflected in
the Inquiry Report, that despite having been given an opportunity to cross-examine
the witness, i.e. SW-4, the Charged Officer did not cross-examine the witnesses,
nor was any question on the documents relied upon sought to be made at any point
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of time before the Inquiry Officer. Therefore, the question of prejudice being
caused to the applicant for the non-supply of documents, and the same having
resulted in a violation of the principles of natural justice, does not arise. In fact,
the applicant remained silent on the letter dated 12.6.2006 and NFE during the
sick period was not recorded/ discussed sincerity during the course of the inquiry
by the Presenting Officer and the Inquiry Officer.
5.9 In Union of India and others Vs. Alok Kumar, 2010 (5) SCC 349, the
Hon’ble Apex Court held that:
“ 57. Earlier, in some of the cases, this Court had taken the view that
breach of principle of natural justice was in itself a prejudice and no other
`de facto' prejudice needs to be proved. In regard to statutory rules, the
prominent view was that the violation of mandatory statutory rules would
tantamount to prejudice but where the Rule is merely dictatory the element
of de facto prejudice needs to be pleaded and shown. With the development
of law, rigidity in these Rules is somewhat relaxed. The instance of de facto
prejudice has been accepted as an essential feature where there is violation
of non-mandatory rules or violation of natural justice as it is understood in
its common parlance. Taking an instance, in a departmental inquiry where
the Department relies upon a large number of documents majority of which
are furnished and an opportunity is granted to the delinquent officer to
defend himself except that some copies of formal documents had not been
furnished to the delinquent. In that event the onus is upon the employee to
show that non-furnishing of these formal documents have resulted in de
facto prejudice and he has been put to a disadvantage as a result thereof.
Even in the present cases, Rule 9 (2) empowers the disciplinary authority to
conduct the inquiry itself or appoint other authority to do so. We have
already held that the language of Rule 9(2) does not debar specifically or
even by necessary implication appointment of a former employee of the
Railways as inquiry officer. Even if, for the sake of argument, it is assumed
otherwise, all the respondents have participated in the departmental
inquiries without protest and it is only after the orders of the competent
authority have been passed that they have raised this objection before the
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Courts. In the light of the peculiar facts and circumstances of the present
case, it is obligatory upon the respondents to show that they have suffered
some serious prejudice because of appointment of retired Railway officers
as inquiry officers. We have no hesitation in stating that the respondents
have no way satisfied this test of law. Thus, if their argument was to be
accepted on the interpretation of Rule 9 (2), which we have specifically
objected, even then the inquiries conducted and the order passed thereupon
would not be vitiated for this reason.
58. Doctrine of de facto prejudice has been applied both in English as
well as in Indian Law. To frustrate the departmental inquiries on a hyper
technical approach have not found favour with the Courts in the
recent times. In the case of S.L. Kapoor v. Jagmohan [1980 (4) SCC 379] ,
a three Judge Bench of this Court while following the principle in Ridge v.
Baldwin stated that if upon admitted or indisputable facts only one
conclusion was possible, then in such a case that principle of natural justice
was in its self prejudice would not apply. Thus, every case would have to be
examined on its own merits and keeping in view the statutory rules applying
to such departmental proceedings. The Court in S.L. Kapoor (supra) held
as under:
"18. In Ridge v. Baldwin [1964 AC 40, 68 : 1963 2 All ER 66, 73]
One of the arguments was that even if the appellant have been heard
by the Watch Committee nothing that he could have said could have
made any difference. The House of Lords observed at (p. 68):
"It may be convenient at this point to deal with an argument
that, even if as a general rule a watch committee must hear a
constable in its own defence before dismissing him this case
was so clear that nothing that the appellant could have said
could have made any difference. It is at least very doubtful
whether that could be accepted as an excuse. But, even if it
could, the watch committee would, in my view, fail on the facts.
It may well be that no reasonably body of men could have
reinstated the appellant. But at between the other two courses
open to the watch committee the case is not so clear. Certainly,
on the facts, as we know them the watch committee could
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reasonably have decided to forfeit the appellant's pension
rights, but I could not hold that they would have acted wrongly
or wholly unreasonably if they have in the exercise of their
discretion decided to take a more lenient course."
59. Expanding this principle further, this Court in the case of K.L. Tripathi
v. State Bank of India [(1984) 1 SCC 43] held as under:
"It is not possible to lay down rigid rules as to when the principles of
natural justice are to apply, nor as to their scope and extent. There
must also have been some real prejudice to the complainant; there is
no such thing as a merely technical infringement of natural justice.
The requirements of natural justice must depend on the facts and
circumstances of the case, the nature of the inquiry, the rules under
which the tribunal is acting, the subject-matter to be dealt with, and
so forth."
60. In the case of ECIL v. B. Karunakar [(1993) 4 SCC 727] , this Court
noticed the existing law and said that the theory of reasonable opportunity
and the principles of natural justice have been evolved to uphold the rule of
law and to assist the individual to vindicate his just rights. They are neither
incantations to be invoked nor rites to be performed on all and sundry
occasions. Whether, in fact, prejudice has been caused to the employee or
not on account of denial of report to him, has to be considered on the facts
and circumstances of each case. The Court has clarified even the stage to
which the departmental proceedings ought to be reverted in the event the
order of punishment is set aside for these reasons. It will be useful to refer to
the judgment of this Court in the case of Haryana Financial Corporation
v. Kailash Chandra Ahuja [2008 (9) SCC 31] at page 38 where the Court
held as under:
"From the ratio laid down in B. Karunakar it is explicitly clear that
the doctrine of natural justice requires supply of a copy of the inquiry
officer's report to the delinquent if such inquiry officer is other than
the disciplinary authority. It is also clear that non- supply of report of
the inquiry officer is in the breach of natural justice. But it is equally
clear that failure to supply a report of the inquiry officer is in the
breach of natural justice. But it is equally clear that failure to supply
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a report of the inquiry officer to the delinquent employee would not
ipso facto result in the proceedings being declared null and void and
the order of punishment non est and ineffective. It is for the delinquent
employee to plead and prove that non-supply of such report had
caused prejudice and resulted in miscarriage of justice. If he is unable
to satisfy the court on that point, the order of punishment cannot
automatically be set aside."
61. The well established canons controlling the field of bias in service
jurisprudence can reasonably extended to the element of prejudice as well in
such matters. Prejudice de facto should not be based on a mere
apprehension or even on a reasonable suspicion. It is important that the
element of prejudice should exist as a matter of fact or there should be such
definite inference of likelihood of prejudice flowing from such default, which
relates statutory violations. It will not be permissible to set aside the
departmental inquiries in any of these classes merely on the basis of
apprehended prejudice.”
th
5.10 In State of Punjab vs Nachhattar Singh(Dead) Thr. LR. decided on 13
October, 2022 arising out of CIVIL APPEAL NO. 7257 OF 2022 (@ SLP
(CIVIL) No.16535/2018, it was held that there is no finding that non-supply of
some documents has resulted in any prejudice caused to the delinquent employee.
Mere non-supply of the documents, which may not have resulted in any prejudice
to the employee, means that the order passed by the disciplinary authority cannot
be set aside. ( See also :K. PRABHAKAR HEGDEVS. BANK OF BARODA
2025 INSC 997).
5.11 The applicant has failed to make out prejudice in the present factual matrix
of the case for want of documents and the relevancy of the said documents thereto.
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6. CONCLUSION
In view of the above discussions, we observe that we do not find any
infirmity in the action of the respondents in imposing the penalty on the applicant,
which has been upheld by the Appellate Authority. Hence, the OA, being devoid
of merit, is dismissed. All pending applications, if any, shall stand disposed of.
No order as to costs.
(VARUN SINDHU KUL KAUMUDI) (MANISH GARG)
MEMBER (ADMN.) MEMBER (JUDL.)
am/sd/evr
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